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October 18, 1985

FRED W. JACOBS, JR., et al.

The opinion of the court was delivered by: POLLAK

POLLAK, District Judge.


 Before the court is a petition for a writ of habeas corpus filed by Charles Pickron pursuant to 28 U.S.C. § 2254. The petitioner is in the custody of the Pennsylvania State Board of Probation and Parole. On April 30, 1979, he was found guilty of robbery, criminal conspiracy, and unlawful restraint by the Honorable I. Raymond Kremer, sitting without jury, in the Philadelphia Court of Common Pleas. He was sentenced to serve concurrent terms of imprisonment of two to eight (2-8) years for robbery and conspiracy, and two to five (2-5) years for unlawful restraint. Post-verdict motions were denied. The Superior Court of Pennsylvania affirmed the conviction and sentence on February 5, 1982, 297 Pa. Super. 615, 442 A.2d 338; the Supreme Court of Pennsylvania denied Pickron's petition for an allowance of appeal on May 28, 1982.

 In his Report and Recommendation to this court, William F. Hall, Jr., United States Magistrate, concluded that petitioner's writ of habeas corpus should be denied. Magistrate Hall first decided that petitioner had presented his claim to the state courts and thereby had adequately satisfied the exhaustion requirement. Report at 3. Magistrate Hall then went on to determine that the evidence before Judge Kremer was sufficient to permit the fact-finder to determine that petitioner was guilty beyond a reasonable doubt. Id. at 5. Pursuant to 28 U.S.C. 636(b)(1) petitioner filed objections to the Magistrate's Report and Recommendations. Accordingly, I must make a de novo determination with respect to those portions of the Report and Recommendation to which objection has been made. 28 U.S.C. § 636(b)(1).

 At the outset, I accept the Magistrate's conclusion that petitioner has exhausted his state remedies. Thus, I must turn my attention to those parts of the Magistrate's Report and Recommendation to which petitioner has objected.

 Petitioner's first objection is that the Magistrate failed adequately to address the central issue raised by the petition, whether there was sufficient evidence to convict petitioner, and instead considered the trial court's credibility determination to be the focus of the petition. Petitioner's Objections at 3. Petitioner further contends that in deciding that the record established sufficient evidence for petitioner's conviction the Magistrate misconstrued Pennsylvania law and the requirements of due process. Id.

 Petitioner primarily contends that he was convicted solely on the basis of repudiated pre-trial statements that should never have been admitted as substantive evidence under Pennsylvania law. Petitioner's Objections at 3. It will be necessary, therefore, first to review the trial record to see what evidence was offered against the petitioner at trial and whether any use of prior inconsistent statements was made. If such statements did figure in the trial, an examination of the Pennsylvania law on prior inconsistent statements will be appropriate.


 As the trial record reveals, witness Frakes, immediately after reporting the robbery, told the police that petitioner -- whom Frakes had seen at least one hundred times before the incident -- was one of the robbers. Record at 20-21, Commonwealth v. Pickron, Nos. 1398 et al. (C.P. Pa. Apr. 26, 1979). Then, at the preliminary hearing, Frakes testified under oath and subject to cross-examination that petitioner was one of the robbers. Id. at 22-23. Moreover, at trial he did not dispute that he had made these earlier identifications. Id. at 20-23. Yet when asked whether one of the robbers was in the courtroom during the trial, Frakes stated that he was "really not sure." Id. at 12. He explained that two weeks before trial he had seen two individuals who resembled two of the robbers, and that one of them looked like the petitioner. Id. When at that time the man resembling petitioner immediately fled and when Frakes realized that petitioner was still in custody, he began to have doubts about his earlier statements of identification. Id. at 12-14. No other evidence was presented at the petitioner's trial.

 When announcing his verdict of guilty, Judge Kremer of the Court of Common Pleas found the witness "not truthful" and "willfully and deliberately endeavoring to aid the defendant at this point." Id. at 32-33. Judge Kremer was unsure of the witness's motivation in his trial testimony and alluded to the possibility of the witness's dissatisfaction with his arrest on a bench warrant to insure his testimony at the trial. Id. at 33.

 In an opinion dated April 15, 1980 and made pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Judge Kremer explained the reasons for his earlier decision. Commonwealth v. Pickron, Nos. 1399-1401, slip op. (C.P. Pa. Apr. 15, 1980). He observed that defendant had raised essentially three issues on appeal: 1) that prior inconsistent statements could not be used as substantive evidence; 2) the prior statements of Frakes were not "inconsistent" with his trial testimony; and 3) that even if the prior statements were admissible for substantive purposes, evidence presented at trial was still insufficient to support the verdict. Id. at 2.

 Judge Kremer squarely faced the question whether prior inconsistent statements could be used as substantive evidence. Relying upon the Superior Court's decision in Commonwealth v. Loar, 264 Pa. Super. 398, 399 A.2d 1110 (1979), which allowed such substantive use for prior inconsistent statements, Judge Kremer argued that Loar did not represent an encroachment upon an earlier rule of law clearly enunciated by the Pennsylvania Supreme Court forbidding such use. Id. at 14. Rather, he thought that the rule prohibiting such use had been eroded by the Supreme Court decisions in Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976), and Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). Id. He thus felt that Loar was the only appellate decision directly relevant to the question of the substantive use of prior inconsistent statements. Id. Loar thus governed his decision in the case before him. Id.

 Judge Kremer also dealt with defendant's contentions that the witness's earlier statements were not inconsistent and that, even if they were admissible, there was not sufficient evidence to sustain a conviction. He found that the prior statements and those at trial were indeed inconsistent, basing his finding upon Commonwealth v. Davenport, 255 Pa. Super. 131, 386 A.2d 543 (1978) and McCormick on Evidence. Id. at 17. And he stated that he could find no support for defendant's contention that there was insufficient evidence to sustain a conviction. Id. at 19.

 The Superior Court affirmed Judge Kremer's decision in a memorandum opinion. Commonwealth v. Pickron, 297 Pa. Super. 615, slip op. at 1, 442 A.2d 338 (1982). According to the Superior Court, the issue was really one of credibility -- not of prior inconsistent statements. Judge Kremer had found Frakes credible as to the prior identifications but not as to the "look-alike" incident. Id. slip op. at 3. The court pointed out that the degree of certainty in eye-witness identification went to the credibility of the witness, a matter well within the province of the trial judge. Id. And, relying upon Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), the court added that certainty by the witness in his identification of the defendant was not necessary for a conviction. Id.

 It seems, then, that Judge Kremer at least considered testimony about prior statements, which he thought to be inconsistent with the witness's later testimony, at petitioner's trial. This fact necessitates examination of the law of prior inconsistent statements in Pennsylvania. However, because the appellate court raised the issue of credibility -- ...

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