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July 18, 1985


The opinion of the court was delivered by: LORD, III

 This is a petition for a writ of habeas corpus. Petitioner was convicted of first degree murder and robbery in 1979 after a non-jury trial before the Honorable Charles P. Mirarchi, Jr. of the Court of Common Pleas of Philadelphia. He was sentenced to a term of life imprisonment for the murder and a concurrent sentence of ten to twenty years' imprisonment for the robbery. On direct appeal, the Supreme Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Gilmore, 496 Pa. 420, 437 A.2d 944 (1981).

 Petitioner then filed a petition for writ of certiorari with the United States Supreme Court alleging that the Pennsylvania Supreme Court erred in refusing to apply the rule of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980) to petitioner's warrantless arrest. Petitioner argued that had the court applied Payton, statements he made after his arrest would have been suppressed. The Court granted the writ, vacated petitioner's sentence, and remanded the case to the Pennsylvania Supreme Court for further consideration in light of its recent decision in United States v. Johnson, 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982). Gilmore v. Pennsylvania, 458 U.S. 1103, 73 L. Ed. 2d 1363, 102 S. Ct. 3476 (1982). In the Johnson case, the Court decided to apply Payton retroactively to cases, like petitioner's, that were still pending on direct appeal at the time Payton was decided. Johnson, supra, at 554. The Payton case announced the principle that "the Fourth Amendment . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect's home to make a routine felony arrest." 445 U.S. at 576.

 On remand, the Pennsylvania Supreme Court disposed of petitioner's case with a cryptic per curiam order: "Judgments of sentence affirmed. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (harmless error)." Commonwealth v. Gilmore, 500 Pa. 319, 456 A.2d 148 (1983). Petitioner then filed the present petition arguing that the Pennsylvania Supreme Court denied him fundamental fairness when it wrongfully determined that the error was harmless. Petitioner specifically noted that while he was objecting to the Pennsylvania Supreme Court's finding of harmlessness, he was not asking this court to address the fourth amendment issue which formed the basis of the Supreme Court's finding of error.

 In reviewing petitioner's allegations, the magistrate to whom this matter was referred was troubled by Stone v. Powell, 428 U.S. 465 [49 L. Ed. 2d 1067, 96 S. Ct. 3037] (1976). That case held that collateral review of a fourth amendment issue is barred when a state court has provided a full and fair opportunity to litigate the question. The magistrate determined:

. . . The petitioner cleverly attempts to camouflage the fourth amendment nature of his claim in a chameleon-like fashion with the hope of circumventing the deeply entrenched precedent of Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). However, a trained eye can easily detect a lizard amidst the foliage.

 Report and Recommendation at 2-3. I disagree with the magistrate's analysis. It would take a well-trained eye indeed to create a fourth amendment lizard when none existed.

 The Pennsylvania Supreme Court's one sentence disposition tells me absolutely nothing about the court's reasoning, except that there was "harmless error." Therefore, in order to translate the court's utterance into a meaningful holding, it is necessary to walk through a series of logical steps:

 1. The Supreme Court remanded to the Pennsylvania court with directions to reconsider its previous ruling in the light of United States v. Johnson, supra.

 3. By characterizing the admission of the statements as "error", the court also found them to be tainted as "the fruit of the poisonous tree," Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939), and concluded that the connection between the statements and the unlawful arrest was not so attenuated as to remove the taint. See Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Were it otherwise, their admission would not have been error. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 64 L. Ed. 319, 40 S. Ct. 182 (1920).

 The Pennsylvania Supreme Court has given the Commonwealth a fair opportunity to be heard; has found the arrest illegal, and the acquisition of the statements to be violative of the fourth amendment; and has determined their admission into evidence to be error. Under Stone v. Powell, supra, I am foreclosed from re-examining that determination. I apprehend that under the equal justice philosophy of the United States, Stone is not a one-way street and its strictures apply equally to the government and to a defendant. Therefore, the determination has been made that there was a fourth amendment violation resulting in trial error. This determination, however, does not end the case. I still must determine whether the error was harmless, a question not embraced by Stone.

 The Commonwealth asserts that because there is fair factual support in the record for the state court's finding of harmlessness, this court must be bound by it. I disagree. Because a finding of harmless error is a mixed question of law and fact, rather than a pure question of fact, I am not bound to accord to the state court's finding "the presumption of correctness" pursuant to 28 U.S.C. ยง 2254(d). See, e.g., Hagler v. Callahan, 764 F.2d 711 (9th Circuit 1985); Grizzell v. Wainwright, 692 F.2d 722, 725 (11th Cir. 1982), cert. denied, 461 U.S. 948, 77 L. Ed. 2d 1307, 103 S. Ct. 2129 (1983).

 The statements that the Pennsylvania Supreme Court deemed to be harmless were made by petitioner after his warrantless arrest on the evening of July 13, 1978. He was taken to the Police Administration Building and questioned concerning the 1973 homicide of Ollie Chesson, Jr. Petitioner initially denied knowledge of the murder, but later confessed in pertinent part as follows:

Before I got there to Girard Avenue I saw a guy laying on the ground. I knew the guy. His name was Ollie, and I started going through his pockets. Mike came up while I was going through his pockets, and he started checking him too. Ollie woke up and sat up, and Mike hit him in the head with the cane. Mike was trying to get into Ollie's back pocket, but he couldn't get into it. He felt something in his pocket. Mike knew I had a knife on me and he asked me for it. I gave it to him and he cut him. I ran across the street and stood near the church, then Mike came across . . . . I got the knife back from Mike the next day -- no, I don't think it was the next day, but I got it back.

 Trial transcript 2.61-62. He also explained that he thought "Mike" was going to use the knife "to cut [the victim's] pocket out 'cause he had felt something." Trial transcript 2.64. After petitioner read and signed the above statement, he was granted permission to call his mother. A police officer alleged at trial that petitioner then made the following statement over the telephone:

We was robbin' the man, and I had a knife. Big Mike knew I had a knife. He told me to give him the knife so he could slash the dude's pockets. Then I seen him ...

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