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ROCK v. ZIMMERMAN

June 1, 1982

Gary Lee ROCK, Petitioner,
v.
Charles H. ZIMMERMAN, Supt., and Attorney General of Pa., Respondents



The opinion of the court was delivered by: CONABOY

MEMORANDUM

Petitioner Gary Lee Rock, presently incarcerated in the State Correctional Institution at Huntingdon, Pennsylvania (SCI-Huntingdon), filed this action, through his counsel, on October 9, 1981 seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) (1966). *fn1" His petition requests this Court to set aside his May, 1978 criminal conviction in the Court of Common Pleas of Franklin County, Pennsylvania, of two counts of first degree murder and six counts of attempted murder. In support thereof, Petitioner asserts that his rights under the Fifth, Sixth, and Fourteenth Amendments to the Constitution were violated during the course of the state criminal proceedings. An Answer to the petition was filed by the Respondents on December 16, 1981, in which the pertinent state court transcripts were included. *fn2" On January 13, 1982, this Court entered an Order directing the litigants to fully brief all the issues involved in the instant petition. Both parties have complied with this directive and, thus, the matter is currently ripe for disposition. For the reasons set below, the petition will be denied in part and an evidentiary hearing will be ordered, limited in accordance with our discussion herein.

 PROCEDURAL HISTORY AND FACTS *fn3"

 On July 2, 1977, Gary Lee Rock set fire to his house and a nearby shed in Franklin County, Pennsylvania. As neighbors and firefighters arrived at the scene of the blaze, Rock fired several rifle shots, striking and killing his neighbor and also the chief of the local volunteer fire department. Additional shots fired by Rock injured several other firemen. As a result of these acts, Petitioner was arrested and charged with two counts of first degree murder, seven counts of attempted murder, and one count of arson. Prior to trial the arson charge was dismissed and a demurrer was sustained on one count of attempted murder.

 Shortly after the incident, the Chief Public Defender of Franklin County, Blake E. Martin, and the Assistant Public Defender, Edwin D. Strite, were appointed to represent Gary Rock. From the time of their appointment until trial, Petitioner's counsel filed various pretrial motions including, inter alia, a motion for psychiatric evaluation, motions to suppress evidence, and motions for a change of venue. Following disposition of these motions, trial commenced on May 9, 1978, some ten months after the shootings. The principal issue at trial was whether Gary Rock was legally sane at the time of the incident and, therefore, criminally responsible for his actions. After a three-day trial, the jury convicted Rock of two counts of first degree murder and six counts of attempted murder.

 After the filing of numerous post-trial motions by Petitioner's appointed counsel, Rock informed the trial court that he wished to raise a claim of ineffectiveness of his trial counsel as a ground for a new trial. The Public Defenders were then relieved of their duties and Petitioner privately retained David Rudovsky, Esq., to represent him in the post-trial phase of the state criminal proceedings. A hearing was held on the motion relating to trial counsel's ineffectiveness on November 8 and December 3, 1979, at which Petitioner was present and represented by Mr. Rudovsky. On April 30, 1980, the trial court filed a lengthy opinion denying all post-trial motions (Respondent's Exhibit M). Thereafter, on September 5, 1980, Gary Rock was sentenced to two concurrent life terms on the first-degree murder counts and concurrent terms of three to eight years on the attempted murder charges, to run consecutively to the life sentences. Fines were also imposed. On June 4, 1981, the Pennsylvania Supreme Court affirmed Rock's convictions in a per curiam Order.

 As noted, the instant petition was filed by Rock's counsel, Mr. Rudovsky, on October 9, 1981. Concisely stated, it advances the following grounds in support of Petitioner's claim for federal habeas corpus relief: (1) a violation of Petitioner's Fifth Amendment rights by a Commonwealth witness' improper comment upon Rock's post-arrest silence; (2) error by the trial court in refusing to grant a change of venue or sequester the jury on the basis of excessive pretrial publicity; (3) a violation of the Miranda doctrine by the introduction of certain of Petitioner's statements at trial; (4) error in the trial court's instructions to the jury; and (5) ineffective assistance of counsel on the part of the two Public Defenders appointed to represent Gary Rock at trial. *fn4" State remedies have been exhausted on these issues *fn5" and, we will discuss the substance of Petitioner's claims in this order.

 DISCUSSION

 A. INTRODUCTION

 In considering a petition for a writ of habeas corpus by a person in custody pursuant to a state court judgment, we are cognizant that our scope of review as a federal court is circumscribed. An initial limitation is presented by 28 U.S.C. § 2254(d) which requires federal court deference to factual determinations by all state courts. See Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). In enacting Section 2254(d), Congress established "that the findings made by the state court system "shall be presumed to be correct' unless one of the ... conditions specifically set forth in § 2254(d) was found to exist by the federal habeas court." *fn6" Id. at 550, 101 S. Ct. at 770. A further limitation to the scope of review of a federal habeas court is presented by the well-established principle that "(a) state prisoner can win a federal writ of habeas corpus only upon a showing that the State participated in the denial of a fundamental right protected by the Fourteenth Amendment." Cuyler v. Sullivan, 446 U.S. 335, 342-43, 100 S. Ct. 1708, 1715, 64 L. Ed. 2d 333 (1980); see Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 1567, 71 L. Ed. 2d 783 (1982); Rose v. Hodges, 423 U.S. 19, 21, 96 S. Ct. 175, 177, 46 L. Ed. 2d 162 (1975). Mindful of these procedural and substantive restrictions on our habeas review power, we now turn to consider the merits of Petitioner's contentions.

 B. COMMENT UPON PETITIONER'S SILENCE

 The Petitioner's first argument in support of his claim for habeas corpus relief concerns the trial testimony of the Commonwealth's psychiatric witness, Dr. John C. Hume. Before Dr. Hume testified, defense counsel informed the Court that, based on information received from other lawyers, they believed that Dr. Hume would attempt to state that the Defendant refused to discuss the incident with him. Based on this representation, the trial court instructed the prosecutor to tell Dr. Hume not to mention the fact that the Defendant would not agree to speak with him. The pertinent portion of Dr. Hume's direct examination by the prosecution is as follows:

 
"Q. Would you relate the number of people and persons whom you had interviews with?
 
A. Yes. I personally interviewed, on October 17th, Randy Kepner, the Pennsylvania State Police Fire Marshall, who testified about the incendiary-
 
Q. Just tell us who they were.
 
A. Mr. Hawbaker, Mr. Rock, who did not talk -
 
MR. MARTIN: We object-
 
MR. STRITE: We object-
 
A. Trooper Kranchick, Trooper Dennis Wible, Joe Amsley, Michael Stenger, and Trooper Chambers.
 
MR. MARTIN: May we approach the bench?
 
(Discussion side-bar out of the hearing of the jury).
 
MR. STRITE: On the basis of the last statement from Doctor Hume on the witness stand, we move for a mistrial.
 
THE COURT: What would Doctor Hume say if he was asked a question concerning his interview with the defendant?
 
MR. CRAMER: If he were asked the nature of that interview with the defendant, say for the purposes of ascertaining a state of mind at the time these events, that he asked the defendant three or four questions and he did answer and then I'd ask him if he observed the demeanor of the defendant and his observation of his personal appearance and that is all that he would testify to and that the defendant refused to further answer any questions.
 
(Argument not made a part of the record).
 
MR. MARTIN: We further would object to pursuing this question, as it would be prejudicial to our case. The more questions that are asked, the more that is going to be implied.
 
(Further argument not made a part of the record).
 
THE COURT: The Court will decide the issue; we're not going to pursue it any further." (Notes of Testimony (hereinafter N.T.) at 415-416) (emphasis added).

 Petitioner contends that the above testimony by the Commonwealth's expert witness violated the rule established in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). In Doyle, petitioners at their state criminal trial, who after arrest were given the Miranda *fn7" warnings, took the stand and gave an exculpatory story that they had not previously told to the police or the prosecutor. On cross-examination, the prosecutor questioned them about their failure to give the explanation to police at the time of their arrest. The Court held that the use of petitioner's post-arrest silence for impeachment purposes violated the Due Process Clause of the Fourteenth Amendment. The Court reasoned:

 
The warnings mandated by that case (Miranda ), as a prophylactic means of safeguarding Fifth Amendment rights, ..., require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to a retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, supra, at 177 (95 S. Ct. at 2137). Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow ...

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