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December 16, 1982

UNITED STATES of America ex rel. John SULLIVAN
Julius T. CUYLER, Superintendent State Correctional Institution Graterford, Pennsylvania and The District Attorney of Philadelphia County

John Morgan Davis, Senior District Judge.

The opinion of the court was delivered by: DAVIS

JOHN MORGAN DAVIS, Senior District Judge.

 Before the court are both petitioner's and respondent's objections to the proposed Findings and Recommendation of Magistrate Edwin E. Naythons which determined the merits of this habeas corpus petition. As the magistrate conspicuously noted, this case is well-travelled. Yet, I suspect it is destined to continue the evitable journey upward to the pinnacle of the appellate courts. Nevertheless, it is my duty to make a de novo determination of those portions of the findings and recommendation to which objection is made pursuant to 28 U.S.C. § 636(b)(1) (1982). See Local Rule 7 IV(b). This duty, of course, is compelled by Article III of the Constitution. See gen., United States v. Raddatz, 447 U.S. 667, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980).

 In making this determination, I have reviewed the entire record in this case which includes: (1) the trial transcript; *fn1" (2) the Post Conviction Hearing Act transcript; *fn2" (3) the habeas corpus hearing transcript; *fn3" (4) all briefs and memoranda submitted by counsel; and (5) all prior opinions issued by state and federal courts. Oral argument was heard on November 18, 1982. A careful and independent review of the entire record of this case convinces me that the learned Magistrate's conclusion that the petitioner was deprived of the effective assistance of counsel is correct and the writ must issue. Because the learned Magistrate set forth his rationale in skillful detail, the court approves and adopts his findings and recommendation as if fully set forth herein. I write separately only to address the specific objections raised by the parties.

 Preliminarily, I note that the petitioner's objection to the Magistrate's consideration of the sufficiency of the evidence issue is specious. By Order *fn4" this court referred the case to the Magistrate for the evidentiary hearing previously ordered by this court. *fn5" In addressing the sufficiency of the evidence issue the Magistrate merely followed the mandate of the court of appeals which directed that this issue be considered in the first instance. *fn6" In any event, after an independent review of the state court trial record, I conclude that the evidence was constitutionally sufficient to sustain the conviction under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and adopt the reasoning of the learned Magistrate. *fn7"

 Both the petitioner and the respondent present a general challenge to the numerous findings made by the Magistrate based upon a lack of evidence in the record and erroneous credibility determinations. I have reviewed each of the objections independently and I find them without merit. While I unequivocally have the power to accept or reject the Magistrate's findings, or to recall witnesses and receive further evidence, *fn8" I have no doubt as to the soundness of the Magistrate's credibility findings based upon his ability to hear and view the witnesses *fn9" and his cogent reasoning. It must be remembered that in effective assistance of counsel cases, it is necessary to probe the decision-making process of counsel. Moreover, the Magistrate in this case was trying to reconstruct a sequence of events which occurred over fifteen years ago. Consequently, in many instances a web of circumstantial evidence must be used to uncover the ultimate facts. In reviewing the Magistrate's findings, I cannot say that they lack a sufficient evidentiary basis to require their outright rejection or reception of further evidence on any point.

 With regard to petitioner's objection to the admission and accreditation of certain hearsay testimony implicating him in various illegal activities, I find no error. Because the evidence was not offered to prove the truth of the matters, but to shed light on the prosecution's theory, it is not hearsay. Fed.R.Evid. 801(c). *fn10" Furthermore, this evidence is relevant to show the Commonwealth's possible theory of prosecution and possible lines of cross-examination. The record contains sufficient evidence that the Commonwealth believed these accusations and was prepared to challenge the defense at trial with them. E.H. at 42-44 (June 1, 1982); E.H. 55-60 (June 21, 1982). Similarly, I do not agree that the record is devoid of any evidence tending to indicate the defense's knowledge of the Commonwealth's theories or potential lines of cross-examinations; i.e. prior convictions, which could have affected the tactical decisions of the defense. The petitioner's criminal record was available to the parties, known to the union membership, and, in fact, stipulated to in the penalty phase of the case. The defense was well acquainted with all the union witnesses in the case, and employed an investigator who interviewed most of these witnesses. Moreover, the defense counsel were generally cognizant of the criminal records of other union members interviewed by the police. E.H. at 12 (May 7, 1982). Thus, as the Magistrate noted, to ascribe such wholesale ignorance to a well prepared defense is ludicrous. See Findings and Recommendations at 20 n. 22. Peruto, in fact, testified that factors other than petitioner's meretricious relationship influenced the decision not to put forth a defense. Id. at 26. E.H. at 51 (May 12, 1982). The Magistrate was well within his mission as the fact-finder when he found based upon the circumstantial evidence in the record, that the attorneys for the defense were aware of the petitioner's prior convictions and the rumors among the union rank and file of his illegal activities.

 Finally, petitioner's objection to the Magistrate's consideration of the statements of witnesses outside the union hall at the time of the shooting is meritless. The statements are part of the record, and prompted an Order by this court concerning their discoverability. They were properly considered by the Magistrate in assessing Peruto's credibility. The remaining objections made by the petitioner are equally meritless and do not warrant discussion.

 The respondent's objections are essentially reduced to two areas of dispute. First, the Magistrate's credibility determinations regarding Peruto's concern for the interest of his client, Carchidi, and Carchidi's desire to participate in the defense of the petitioner are attacked as erroneous and internally inconsistent. Second, the respondent assails the Magistrate's conclusion of law that an actual conflict of interest and adverse affect on the performance of counsel was present when counsel failed to call co-defendant Carchidi as a defense witness, even though his testimony would have refuted that of the state's star witness, in order to protect him from possible self-incrimination.

 As I heretofore stated, the Magistrate faced the unenviable task of reconstructing facts which occurred well over a decade and a half ago. While rejecting much of Peruto's testimony, *fn11" he found that "Peruto decided not to use Carchidi's testimony because he perceived the possibility of harm to Carchidi's later defense and the incriminating potential of cross-examination". *fn12" Based on the trial transcript, the Magistrate concluded that Peruto perceived this danger before the close of the prosecution's case. *fn13" The Magistrate then points out that Peruto's 1974 testimony is consistent with his 1982 testimony with regard to considering the interests of the co-defendant in the decision to present no defense at petitioner's trial. Contrary to the respondent's suggestion, the Magistrate did not misread Peruto's 1974 testimony. Under direct examination by Mr. Moran, the following colloquy took place:

Q. Wait just a minute, sir. You were concerned with the other two defendants you represented; is that correct?
A. Yes. Why expose your defense if you've got two more people to come to trial and the Commonwealth has not presented a case?
Q. So that entered into your consideration as to whether or not you presented a defense in the Sullivan case?
A. Sure, it did. When we're talking about back and forth. For example, I've heard Judge DiBona testify today, and yes, we were sort of playing devil's advocate. I didn't want the defense to go on because I thought we would only be exposing the defendant witnesses for the other two trials that were coming up. Now on the other hand, you see, the three defendants had already decided between themselves which of us they wanted to be chief counsel. John Sullivan picked Fred DiBona, the other two defendants picked me. So certainly I had to be chief counsel and face the trial of the other two men. And as I look back on that, although it was not my thought that John Sullivan should be short-changed in any fashion, I'm afraid that it was my thought, that I was over-solicitous for the other two defendants being ready to be tried.

 P.C.H.A. at 101 (April 25, 1974) (emphasis added).

 This testimony, while not in minute detail, clearly reflects counsel's concern for the defense of the untried defendants if they were to testify on behalf of the petitioner. This, of course, is consistent with the trial transcript and Peruto's more embellished testimony in 1982. Accordingly, I find that the respondent's objections to these credibility findings are without merit. *fn14"

 In his report, the Magistrate ably traced the evolution of the standard enunciated in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) and the division opinion which its ambiguous language has spawned in the courts of appeals. He reasoned that the Court requires a finding of actual conflict which causes the attorney to choose a course of action adverse to his client's interests without the necessity of showing that the lapse in representation affected the outcome of the trial. Thus, because he found that counsel labored under conflicting duties (i.e. -- to present exculpatory evidence on petitioner's behalf through the testimony of the co-defendant, yet to protect the co-defendant from possible self-incrimination), and that counsel chose the latter course of action adverse to petitioner's best interest, he concluded that the attorney's performance was adversely affected within the meaning of Sullivan. He declined to accept respondent's argument advanced herein since it is "merely an attempt to redefine the Sullivan standard in terms of prejudice." Findings and Recommendation at 45. I fully concur with this analysis and adopt it herein. Accordingly, my discussion will be confined to the fundamental flaw in the respondent's reasoning.

 The semantic ambiguities in the various opinions dealing with conflicts of interest both pre and post Sullivan create the opportunity for courts to utilize catch-word phrases in analyzing difficult factual patterns. But conclusory terms such as "prejudice" and "adverse effect" on counsel's performance, while efficient, are not always analytically sound. Although referring to these terms of art, the Court in Sullivan itself suggested the precise mode of analysis that the Magistrate utilized. After identifying the relevant standard and explaining it by distinguishing Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942) and Dukes v. Warden, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972), the Court concluded:

Thus, a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. See Holloway [v. Arkansas,] supra, [435 U.S. 475] at 487-491 [ 435 U.S. 475, 98 S. Ct. 1173, 1180-82, 55 L. Ed. 2d 426]. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. See Glasser, supra, [315 U.S.] at 72-75 [ 62 S. Ct. at 465-67]. *fn15"

 Cuyler v. Sullivan, supra, 446 U.S. at 349-50, 100 S. Ct. at 1718-19. The Court's citation to the article in footnote fifteen signifies its intended explication of the phrase -- "counsel actively representing conflicting interests." Perusal of the article at the cited pages uncovers essentially the same analysis contemplated by the majority of decisions subsequent to Sullivan, and employed by the Magistrate herein. *fn15"

 The danger in Sixth Amendment terms to be identified by the Sullivan analysis is the causative effect on the lawyer's judgment of the conflicting interests. When the division in loyalty directly affects the lawyer's judgment, representation is per se ineffective and counsel is in essence denied altogether. This is because the "right to counsel guaranteed by the Sixth and Fourteenth Amendments contemplates the service of an attorney devoted solely to the interests of his client". United States ex rel. Hart v. Davenport, 478 F.2d 203, 209 (3rd Cir.1973). Thus, it is the impaired loyalty itself; not the degree of incompetence produced by the impairment which violates the spirit of the Sixth Amendment. This view is evinced by the distinction drawn between conflict ineffectiveness and incompetence ineffectiveness. *fn16"

 The circumstances of this case, as discussed by the Magistrate, demonstrate an actual conflict of interest which caused the attorneys to consider the co-defendant's interest in their decision to rest the petitioner's defense. The divergence in loyalties either to proffer the co-defendant as a rebuttal witness, or withhold his testimony to protect him from the perils to self-incrimination produced the requisite adverse effect on the representation by forcing counsel to compromise their decision in favor of the co-defendant. Thus, in this instance, the concept of "conflict" and "adverse effect" merge. The nature of this particular conflict by definition affected petitioner's representation. The choice mandated by the inconsistent obligations is constitutionally impermissible. To indulge in a calculation as to the effect on the outcome of the trial caused by this "impermissible choice", is limitless and futile. The Sixth Amendment is worthy of more than this meaningless gesture.

 Moreover, the cases cited in detail by the Magistrate support this conclusion. See United States v. Levy, 577 F.2d 200, 241 (3rd Cir.1978); United States v. Dolan, 570 F.2d 1177, 1179 n. 2 (3rd Cir.1978). *fn17" See also, United States v. Pinc, 452 F.2d 507, 509 (5th Cir.1971) (inability to call jointly represented co-defendant as defense witness with exculpatory testimony -- "prejudicial"). *fn18" But see Davidson v. Cupp, 446 F.2d 642 (9th Cir.1971). *fn19"

 For these reasons as well as those so ably stated by the learned Magistrate, I hold that the petitioner was deprived of effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the United States Constitution. I have not made this decision lightly. But my sworn duty to "safeguard the liberty of all persons . . . against infringement through any violation of the Constitution" compels this conclusion. Townsend v. Sain, 372 U.S. 293, 311, 83 S. Ct. 745, 756, 9 L. Ed. 2d 770 (1963) (quoting Hawk v. Olson, 326 U.S. 271, 274, 66 S. Ct. 116, 118, 90 L. Ed. 61 (1945)). Petitioner's conviction cannot stand and the writ must issue.


 AND NOW THIS 16th day of December, 1982, IT IS HEREBY ORDERED THAT:

 1. The Findings and Recommendation of the United States Magistrate is approved and adopted.

 2. The petition for writ of habeas corpus is Granted, the execution of the writ is stayed for a period of sixty (60) days from the date of the Order of the Court to allow the Commonwealth of Pennsylvania an opportunity to appeal as provided by law or to relist the Bill of Indictment for a speedy trial.


 October 18, 1982.

 EDWIN E. NAYTHONS, United States Magistrate.



 This case has run the legal gamut. It has traversed the continuum of legal process available to an individual who is confronted by the prosecutorial power of the state. It has spawned no less than eight separate opinions by various courts; state and federal. Whatever issue the parties take with this court's disposition of the merits of this habeas corpus petition, it cannot be said that they did not receive the process they were due.

 The procedural history of this case has been exhaustively set forth in prior opinions by the Supreme Court, *fn1" twice by the Circuit Court of Appeals, *fn2" and the Pennsylvania Supreme Court *fn3" as well as this court. *fn4" Nevertheless, it is necessary to briefly summarize the procedural posture in order to understand the precise issues which the court decides herein.



 On June 19, 1967, after a two week jury trial, the petitioner, John Sullivan, was convicted of two counts of first-degree murder. *fn5" Punishment was fixed at two consecutive life-sentences for the killings. Gregory Carchidi and Anthony DiPasquale were also indicted along with the petitioner but were acquitted in subsequent trials on January 26, 1968, and March 14, 1968, respectively. Both were represented at trial by the same counsel which represented Sullivan -- G. Fred DiBona and A. Charles Peruto. Following the denial of motions for a new trial and in arrest of judgment by a three judge panel of the Courts of Common Pleas, judgment of sentence was imposed as the jury directed. On November 29, 1971, an equally divided court affirmed the conviction on direct appeal. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971). Petitioner twice sought reconsideration of this decision after new counsel was obtained. Both applications were denied. *fn6"

 The petitioner then sought collateral relief under the Pennsylvania Post Conviction Hearing Act ("P.C.H.A."). *fn7" Upon consideration of the petition, the P.C.H.A. court held that the petitioner could take a second direct appeal because counsel had not adequately assisted him in his first appeal. *fn8" After consolidation of this appeal and various cross appeals, the Pennsylvania Supreme Court, once again, affirmed petitioner's original conviction and the denial of collateral relief. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). *fn9"

 Having exhausted his state remedies, *fn10" the instant petition for habeas corpus relief was filed on behalf of the petitioner. Seven separate grounds for relief were alleged:

 (1) The admission into evidence of color slides was a denial of due process;

 (2) that the factual data underlying relator's conviction was so totally void of evidentiary support as to violate due process;

 (3) defense counsel had a conflict of interest because he also represented two other persons charged with the same crime;

 (4) counsel was ineffective by failing to object to certain testimony;

 (5) counsel was ineffective in failing to reserve objections to the offering of a secret ...

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