United States ex rel. Green v. Rundle
United States ex rel. Green v. Rundle
Opinion of the Court
OPINION
This is a petition for writ of habeas corpus
After serving a portion of his sentence, relator was released on parole on September 18, 1964. In November 1966 he was arrested and thereafter convicted on new charges and was returned to prison as a parole violator. In January 1968, Green filed a state Post-Conviction Hearing Act Petition. Pursuant to leave of court, on April 11, 1968, court-appointed counsel for Green filed an Amended Petition in which it was alleged that Green’s guilty plea resulted from a statement, obtained “as a result of the coercion and duress exercised by the Police Officers and because of the apprehension of fear and the inexperience of petitioner and as a result of the denial of assistance of counsel.”
A hearing on the petition was held on July 21, 1968,. before Judge Stanley Greenberg. In an opinion filed on September 30, 1968, Judge Greenberg held that Green had failed to carry his burden to show that his confession was coerced and was the primary motivation for his guilty plea. The court held further that Green was not denied the effective assistance of counsel since the record demonstrated that “trial counsel had a more than adequate knowledge of the background of the defendant and the circumstances of the offense.” (Page 2, State Court Opinion). The state court denied relief. The decision was affirmed per curiam by the Pennsylvania Superior Court on May 22, 1969, and, on September 11, 1969, the Supreme Court of Pennsylvania denied allowance of appeal.
In the federal petition, relator again asserts that the plea of guilty was not voluntarily and' intelligently entered because he had not received competent advice of counsel at the time of the entry of the plea. A hearing was scheduled on the federal petition but was postponed at the request of counsel to enable them to prepare certain stipulations to supplement the state record. Those stipulations have now been filed (documents Nos. 12 and 18). The record before this court, therefore, consists of the entire state court record supplemented by affidavits of James Egan and Albert Ahrenholz, witnesses to events which occurred on the night of the crime in 1962; the affidavit of Eileen Drelick, secretary to relator’s present counsel; two letters from, and one letter to, relator’s trial counsel; the Police Offense Report prepared on September 17, 1962; a statement prepared by the police and signed by relator on September 18, 1962; and a letter from the administrator of Hahnemann Hospital advising that records of treatment in 1962 of the victim of the crime and of Green are no longer in ex
The crime which gave rise to this habeas corpus proceeding was committed on September 17, 1962. At about 9:30 p. m. on that date, a young black male followed the female victim into the vestibule of her apartment house at 1704 Race Street where he grabbed and beat her in an apparent robbery attempt. The noise attracted the attention of a neighbor, Albert Ahrenholz, who went to the scene, saw that the young woman was being beaten, and held the door shut while shouting for help. At some point the door opened and the assailant ran out past Ahrenholz. The commotion also attracted the attention of passersby in an automobile, Albert Strohmetz and James Egan. They saw a black male run from the doorway followed by a bleeding girl. Strohmetz went to the aid of the girl who collapsed in his arms. Meanwhile, Ahrenholz gave chase on his motorcycle. Soon the police arrived and Ahrenholz directed them to the area of 17th and Wood Streets where he had chased the assailant. Green was found hiding on the rooftop of a garage in the 1600 block of Wood Street. When Green came down from the rooftop, he was apprehended by the police. Force was used during the arrest and Green was taken to Hahnemann Hospital, was treated there for lacerations of the head and was then taken to the police station. At about 1:00 a. m. on September 18, 1962, Green gave to the police the statement which he contends was coerced and which caused him to enter the guilty plea.
On December 10, 1962, represented by privately retained counsel, and with his mother present in the courtroom, Green entered the guilty plea. In the course of those proceedings, the Assistant District Attorney recounted the events substantially as hereinabove recited. Green’s counsel made a plea for mercy on his behalf and called upon the mother to testify. Counsel then asked Green if there was anything he wanted to say to the court, to which Green responded:
“I’m sorry for what I done. If I wouldn’t have been drinking I wouldn’t be in the kind of predicament I am; I wouldn’t never do what I did. I’m sorry for what I did.”
As stated in the brief of relator’s counsel, “[r] educed to its essence the issue before this Court is whether Petitioner’s plea of guilty was based on reasonably competent advice by counsel. McMann v. Richardson, 379 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, stands for the proposition that a plea of guilty in a State Court may not be collaterally attacked in a Federal Court on the ground that it was motivated by a coerced confession unless it can be shown that the defendant was incompetently advised by his attorney. A plea of guilty gives rise to a waiver of constitutional safeguards only when the plea of guilty is based upon competent advice of counsel.” (Page 6, Memorandum of Law in Support of Petition for Writ of Habeas Corpus, Document No. 13).
Relator concedes that his trial counsel “was one of the most able criminal lawyers practicing in Philadelphia at that time”
The main thrust of relator’s argument is that trial counsel was misled by the Police Report into believing that Green was constantly in the sight of his pursuers from the time he left the vestibule at 1704 Race Street until he was apprehended by the police, and that Green had been “positively identified” after the arrest as the man the witnesses had pursued. The affidavits of various witnesses were submitted to demonstrate that, if trial counsel had interviewed those witnesses, he would have realized that the case against Green was too weak to justify entry of a guilty plea. It is contended, therefore, that trial counsel’s failure to interview the witnesses constituted incompetent performance.
The only affidavits worth discussing are those of Ahrenholz and Egan.
The affidavits were submitted to demonstrate that the Police Report was inaccurate in that (1) Ahrenholz did not have Green “continually” in his view, and (2) Egan had not “positively identified” Green as the assailant. The affidavits were intended further to establish that Green had been physically abused by the police after he was taken into custody.
There are several difficulties with relator’s position. First, the information in the Police Report has been distorted. In Ahrenholz’ affidavit he states: “I understand
I have examined the Police Report carefully and nowhere in the Report is Ahrenholz so quoted. The sequence of events as therein recorded and as purportedly related by Ahrenholz to the police, contains such a confusion of references to both pursuer and pursued as “he” and “him” that it would be most difficult to interpret the Report as relator would now have it interpreted, i. e. as a statement by Ahrenholz that he had Green “continually” in his view. Fairly interpreted, Ahrenholz’ information to the police concerning the man he had been pursuing led the police to the area of 17th and Wood Streets where, after a search, Green was found hiding on a rooftop. Certainly an experienced criminal lawyer would not have taken it for more than that.
Second, with respect to the “positive identification” allegedly attributed to Egan, the Police Report contains what appears to be the product of a joint interview of Strohmetz and Egan, referring to what “they” saw and what “they" did. The report of the interview contains the statement: “They saw the man & he was the same man the police apprehended.” Egan’s 1974 affidavit states only that he was unable to see the “full face of the assailant as he ran across Race Street.” It does not state that neither he nor Strohmetz said anything to the police on September 17, 1962 to warrant the statement in the Report: “They saw the man & he was the same man the police apprehended.”
Third, the affidavits of Ahrenholz and Egan are conflicting in their descrip
Finally, there are inconsistencies between the statements made in these affidavits and Green’s own testimony relating to these events. For example, Egan states that he saw the police strike Green at the hospital, and that, whereas Green had had two patches on his head after the doctors treated him at the hospital, there were three patches on his head at the preliminary hearing the next morning. The clear implication is that Green was beaten by the police after he had been treated at the hospital. Ahrenholz’ affidavit speculates that Green had been beaten by the police on one shift at the police station and that he would be beaten by the police on the next shift. Green, on the other hand, in his testimony at the PCHA hearing, made no mention of being struck at any time or at any place other than while he was being apprehended after jumping down from the roof at 17th and Wood Streets.
Considered from any point of view, or from any interpretation, the supplemental material submitted to this court does not establish that the interviewing of witnesses would have led to any different advice by trial counsel. At most, if trial counsel had been armed with the information contained in the affidavits he could have asked some interesting questions on cross-examination if the matter had gone to trial, but the evidence of guilt would nevertheless have been overwhelming.
Green contends, and he so testified at the PCHA hearing, that on the day of trial he told trial counsel that he was in-
nocent, and that he had given the statement only because of police coercion, but that trial counsel told him that, since he had given the statement, there was nothing he could do except to plead guilty. In the letters submitted with the stipulations, trial counsel reported that, as of the date of writing the letters, he had no independent recollection of the case, but that if Green had reported to him the alleged circumstances surrounding the giving of the statement, he would not have permitted the entry of a plea but would instead have gone to trial and attempted to attack the confession. The state record reflects that trial counsel had reviewed the statement and the Police Report, and that he went over the statement with Green on the day of the trial;
After careful review of the entire state record and of the supplementary material submitted to this court, I am satisfied that the plea was validly entered with the competent advice of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Relator has not demonstrated that the advice he received from trial counsel was outside the standards set forth in McMann. United States ex rel. Davis v. Johnson, 495 F.2d 335, 342 (3d Cir. 1974). Moreover, relator would not have carried his burden even if he had demonstrated “that if counsel has pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973).
Essentially, the supplementary material does not detract from the pivotal fact that relator was found to be not credible
. The petition was filed on December 19, 1969. The Judge to whom the case was assigned resigned. The case was reassigned to me on November 21, 1973. Following a meeting with counsel, proceedings in this court were stayed pending an attempted resolution of the matter in the state court. When resort to the state court proved unsuccessful, proceedings in this court resumed.
. Commonwealth of Pennsylvania v. Carl Evely Green, Quarter Sessions, Philadelphia County, October Sessions 1962, Nos. 111-115, 120.
. The date on the face page of the transcript of the plea proceedings is December 10, 1963, but that seems to be a typographical error.
. He is now a member of the Supreme Court of Pennsylvania.
. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. The affidavit by relator’s present counsel’s secretary reports that she communicated ■with the victim, who reaffirmed the prior statement she made to the police that she could not identify her attacker; that she was cut by a ring her attacker was wearing; and that she had not been interviewed or questioned by trial counsel. The secretary’s affidavit went on to state that she asked Green if he wore any jewelry that night and he told her that he wore no jewelry at that period in his life. This totally hearsay affidavit contributes nothing to the case. Whether the attacker did, or did not, wear a ring, has never been an issue in the case.
. Following Egan’s signature appears “5/31/74” without explanation.
. The source of the understanding is not disclosed.
. Trial counsel had seen Green briefly on two other occasions when the case was postponed.(N.T. PCHA 15).
Reference
- Full Case Name
- UNITED STATES of America ex rel. Carl Evely GREEN v. Alfred T. RUNDLE, Superintendent
- Status
- Published