Appeal from the United States District Court for the Eastern District of Pennsylvania
Aldisert and Becker, Circuit Judges, and Cohill, District Judge.*fn* Becker, Circuit Judge, concurring.
In this appeal from a denial of federal habeas corpus relief under 28 U.S.C. § 2254, a state prisoner raises a number of questions relating to the conduct of his state trial where he was convicted of attempted burglary of a bank, criminal trespass, attempted theft and a summary offense of criminal mischief. At trial he insisted on proceeding pro se, as is his right, Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968), although standby counsel was appointed for appellant and was present during the entire trial. We find no merit to his contentions.
Brown, an investigator supplied to Oliver, was subpoenaed by the defense but did not appear at trial. Oliver wanted him to testify that the lighting conditions in the bank were poor and thus identifications of Oliver as the burglar were suspect. He asked for a court order to compel his own witness' attendance which was denied. An alternative request was for a jury "view" of the scene. This, too, was denied. Oliver also contended that he was restricted from cross-examinining two of his own witnesses in an effort to show that they and not he were the burglars. Finally, in its summation to the jury, the prosecution characterized Oliver's questioning of police officers as amounting to an unconscious confession. Oliver charged that this constituted trial error. In a post-verdict motion he attempted to raise several issues that he neither briefed nor argued at trial. This was prohibited by a local court rule.*fn1 In an effort to argue against the application of this rule, he requested a transcript of the trial to refresh his memory of what transpired. This was granted, but the transcript was not delivered until eight months after the post-verdict motion was denied. On appeal to the Pennsylvania appellate court, the judgment of conviction and sentence was affirmed.
In his habeas petition before the district court, Oliver argued, inter alia, that it was error for the state trial court to deny his request for a transcript to aid in the preparation of his post-verdict motions and to deny compulsory process against certain defense witnesses (presumably Brown). Oliver did not contend that the state trial court's restrictions on his ability to cross-examine his own witnesses was error, but he did argue that the prosecution's closing argument was improper. The petition was denied.
In appealing that denial now, he asserts that he did not get a full and fair hearing in the state court system and thus the district court should have held an evidentiary hearing on his claims. He points to three state trial errors: the prosecutor's closing statement implying that he had unconsciously confessed, denial of compulsory process against Brown or, in the alternative, a "view" of the scene, and denial of his ability to cross-examine his witnesses. He also argues that it was reversible error for the trial court to deny his request for a transcript in preparing his post-verdict motions.
We do not agree that an evidentiary hearing was necessary in the district court. Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981). We now proceed to examine certain, but not all, of his substantive contentions. Primarily, Oliver has difficulty in proving the precise words spoken in the prosecutor's closing argument because Oliver, proceeding pro se, failed to request that a transcript be made of the final arguments to the jury. The general trial practice in Pennsylvania is that only testimony of witnesses and statements of the court are transcribed as of course. Opening and closing speeches are not transcribed unless requested by counsel, but any objection lodged during the course of such speeches is transcribed together with the judge's ruling thereon. In Commonwealth v. Musser, 172 Pa. Super. 44, 92 A.2d 270 (1952), the Pennsylvania Superior Court determined that counsel's closing address to the jury need not be stenographically recorded by the court reporter unless the trial judge so orders. The court upheld the trial judge's refusal to honor the defendants' request to order the court stenographer to transcribe the district attorney's arguments to the jury:
In refusing defendants' request the trial judge stated: "Counsel always has the right to put on the record anything objectionable contained in counsel's remarks to the jury." The action of the trial judge was not erroneous in this respect. See Commonwealth ex rel. Turk v. Ashe, 167 Pa.Super. 323, 74 A.2d 656; Act of May 1, 1907, P.L. 135, § 2 as amended, § 3, 17 P.S. §§ 1802, 1804. No objection was made to any alleged improper remarks of the district attorney until the conclusion of his argument, and the alleged improper remarks were not placed on the record. Consequently the refusal of the trial judge to withdraw a juror is not reviewable. Commonwealth v. Kerr, 171 Pa. Super. 131, 89 A.2d 889. Furthermore, we find nothing objectionable or prejudicial in what the district attorney is supposed to have said.
Id. at 271. The holding in Musser was grounded on the court's construction of the Act of May 1, 1907, P.L. 135, § 3, 17 Purd. Stat. Anno. § 1804. That statute directs a court stenographer to record testimony, judges' charges, rulings, orders, and other matters which the judge may direct, and does not specifically require the arguments of litigants to be transcribed. Since Musser, the Pennsylvania legislature has granted the Pennsylvania Supreme Court authority to prescribe rules governing "practice, procedure and the conduct of all courts. . . ." 42 Pa. Con. Stat. Anno. § 1722(A)(1) (Purdon 1981), and has authorized repeal of the statute interpreted in Musser "to the extent [it] is inconsistent with rules" so prescribed. Id. However, since no such inconsistent rules have been prescribed, Pennsylvania courts have ruled that 17 Purd. Stat. Anno. § 1804 is still in effect. Mansfield v. Lopez, 288 Pa. Super. 567, 432 A.2d 1016, 1018 (1981). Thus, Musser's holding that a trial judge may refuse to order the court stenographer to transcribe a litigant's oral address to the jury survives. This holding applies here a fortiori because Oliver made no request to have the argument transcribed.
Moreover, like the Pennsylvania Superior Court in the Musser case, "we find nothing objectionable or prejudicial in what the prosecutor is supposed to have said."*fn2 Indeed, this is a classic exemplification of the old adage "One who serves as his own counsel has a fool for a client." It is true that in this context the Supreme Court has decided that one has a constitutional right to be a fool. Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). But a defendant in a criminal proceeding who elects to reject the state's offer to provide counsel, and makes a knowing and intelligent waiver of this right, takes his chances. And Oliver did just that. In questioning witnesses who were on the scene in the bank, Oliver did not use the expression, "the burglar"; instead, he kept referring to "the defendant." Once this appeared in the record -- and it did numerous times, see Appendix at 121a-22a, 127a, 132a, and 134a -- the prosecutor had a clear right to comment on it. It is not prosecutorial misconduct to ask the jury to draw permissible inferences from anything that appears in the record, and the record is replete with questions asking specifically about the conduct of "the defendant" in the bank. A permissible inference is that he was talking about himself. It was not prosecutorial overreaching for the district attorney to ask the jury to draw that inference. Oliver cannot have it two ways -- he cannot stubbornly reject the state's offer to provide counsel and then say he sustained a constitutional deprivation because he tried his case so stupidly.
Where an indigent defendant is implicated in a criminal trial, the court must, on request, provide the defendant with a trial transcript or an equivalent thereof in order that he may properly prosecute an appeal. Draper v. Washington, 372 U.S. 487, 9 L. Ed. 2d 899, 83 S. Ct. 774 (1963); Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956). Similarly, courts must comply with such requests made by indigents bringing federal habeas petitions. U.S. ex rel. Cleveland v. Warden, New Jersey State Prison, 544 F.2d 1200 (3d Cir. 1976). Here Oliver was not denied a copy of the transcript, although he had to wait some eight months to obtain it. But Oliver's failure to have the trial transcript for preparation of post-trial motions before the state court does not rise to any constitutional deprivation. First, he had the transcript available for appellate review as required by Griffin v. Illinois, 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585 (1956). Second, he has not demonstrated that he was precluded from raising any trial error by direct appeal or post-conviction review by reason of his failure to have a transcript at the post-trial motions stage of the proceedings. Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1981). Distilled to its essence, his argument asserting a constitutional deprivation is this: without a transcript he could not prepare a proper post-verdict motion regarding prosecutorial misconduct during the closing argument; without a proper post-verdict motion, he could not effect a proper appeal; therefore he was deprived of due process in being unable to effect a proper appeal to the state appellate courts. It is true that under Rule 1123(c)(3) Pa. R. Crim. Pro., upon a finding of guilt, the trial judge shall advise the defendant on the record "that only the grounds contained in [post-verdict] motions may be raised on appeal." Moreover, the Pennsylvania Supreme Court has ruled that "only those issues included in post-verdict motions will be considered preserved for appellate review." Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296, 1298 (1979). But here, Oliver did ...