Before KALODNER, HASTIE and GANEY, Circuit Judges.
This case comes before this Court from the denial of the petition for writ of habeas corpus in the District Court for the Western District of Pennsylvania.
The appellant, John Francis Butler, was sentenced on May 5, 1958, by the Court of Oyer and Terminer of Northumberland County, to a term of from four to ten years for armed robbery which was to be served in the Eastern Penitentiary. While there interned, he made application for a writ of habeas corpus and a hearing was set for May 26, 1959, before Judge Troutman of Northumberland County. In the meantime, he had been transferred to the Western Penitentiary and was brought to Sunbury for the hearing. At the time of hearing, the appellant withdrew his application for the writ, signed it, as did his counsel, and was to be returned the following day to the Western Penitentiary at Pittsburgh. On May 27, 1959, between 10:30 and 11:00 in the morning, the appellant was brought from the county jail with a belt around him through which handcuffs were attached, the belt being loose enough so that appellant had freedom of movement of his hands. The sheriff in charge of the prisoner was one James Lauer who had been sheriff of Northumberland County for eleven years. He was 5 feet 5 1/2 inches tall and weighed about 245 pounds. He had asked a friend of his of some years standing, one Merlin Diehl, to go with him and drive his own Chrysler Windsor model car. Enroute to the Western Penitentiary, the appellant was seated in the rear seat alone. Merlin Diehl was driving the car and the sheriff was seated in the front seat alongside the driver and between them was a.38 caliber revolver lying on the seat with a newspaper covering it. They stopped at two gasoline stations along the way and a Howard Johnson restaurant where the appellant was permitted to leave the car, have something to eat, as well as go to the men's room, and they all returned to the car without incident. The handcuffs and belt were placed upon the appellant in the same manner as when they left the jail and the arrangement of the handcuffs with the belt permitted the appellant enough freedom of movement so that he might smoke cigarettes. When they reached the Perry interchange, on the Pennsylvania Turnpike, Merlin Diehl, the driver of the car, took the wrong route, going north instead of south, and, finally, after having determined he was on the wrong route, returned to Route 19 and proceeded in a southerly direction toward the Western Penitentiary. After they had proceeded a short distance in the right direction, it began raining very hard and, finally, it became so severe that they had to slow down to 10-15 miles per hour and, while proceeding slowly downgrade, at about 5:30 p.m., the appellant lurched over the front seat, grabbed the pistol, which was lying on it, and, according to the only eyewitness, the driver of the car, Merlin Diehl, the sheriff grabbed at his arm and said, "John, don't do it.", to which the appellant replied, "Let me go, Jim, or I'll kill you." Aware of what was happening, Diehl drove the car to the side of the road, almost touching a side embankment, opened the door and came to the back of the car for the purpose of aiding the sheriff. As he opened the door, he saw the flash of a gun and heard a shot. The sheriff, at that time, was on the floor of the car, between the back portion of the front seat and the front portion of the rear seat, lying with his head facing Diehl and his face turned toward the front portion of the rear seat, partially on his right arm. He was specific as to the position of the sheriffs' body, saying definitely he was not in a half sitting position. As he opened the door, the sheriff's head came out, it apparently having been against the door.
Diehl testified that the appellant was on the opposite side of the car, in a crouched position, partially on the seat, and told him, "I'll get you." Diehl immediately ran a short distance from the scene, down over an enbankment and sought safety in a nearby garage with the appellant, Butler, in pursuit part of the way, when he veered off and ran into a wooded swampy section of the countryside. He hid out until the next morning at 6:00 a.m., giving himself up to State Police who were surrounding the area.
John McCallen, a witness who was a short distance behind the car driven by Diehl, passed the automobile and he could observe a portion of the decedent's head out of the car and saw the appellant running away from the scene. He heard no shot and immediately came back and with the help of some others who had gathered at the scene, helped to extricate the body of the decedent, Sheriff Lauer. The body of the decedent was so wedged in between the back portion of the front seat and the front portion of the back seat that it was necessary to take out the back seat in order to remove the decedent.
The appellant was tried for murder and found guilty in the first degree. Under the Split Verdict Law of Pennsylvania, the jury was presented with evidence to determine the degree of punishment and they returned a verdict of death by electrocution. An appeal was taken to the Supreme Court of Pennsylvania, the conviction was sustained and a petition for certiorari to the Supreme Court of the United States was denied. The appellant then filed a petition for writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, from the denial of which this appeal is taken.
The first contention of the appellant, that he was deprived of due process of law, concerns itself with the following. The Courts of Allegheny County had adopted a Rule Number 38, entitled "Records of Behavior Clinic", Sections 1 and 2 of which read as follows:
"Section 1. The record and reports of the Behavior Clinic, the pre-sentence and pre-parole reports of the Probation Office, and the preparole reports from the Workhouse, are confidential records of the court, to be used only by the court or the proper officers thereof under its direction. They are not to be exhibited to or examined by any other person except upon Order of Court after application in writing. Nothing in this rule shall be construed to interfere with the practice of the Behavior Clinic in furnishing the results of examinations to the District Attorney.
"Section 2. All persons accused of murder shall be examined by the Behavior Clinic and the report thereof shall be submitted to the court."
By Order of Court, dated April 25, 1960, upon the application of the District Attorney of Allegheny County, and after hearing held without notice to counsel for defendant, it was decreed "that either the prosecution or the defense is permitted to call as witnesses, any medical doctor or psychologist from the Behavior Clinic who has participated in an examination of the defendant, John Francis Butler. It is further ordered that the reports of said Behavior Clinic shall not be disclosed to either party prior to their appearance in court of the said witnesses. Rule 38 of the Court is hereby waived so that the jury and/or the Court may have available for its consideration such testimony."
The report was handed to counsel for the defendant during the first day of trial, May 16, 1957. It is appellant's contention that, in a murder trial, since counsel must be present in every stage of the proceeding, that counsel, not having been apprised of the District Attorney's application for waiver, a fundamental right was denied him, in that Dr. Davis of the Behavior Clinic was called and testified that at the time of the shooting the appellant was sane and knew the difference between right and wrong. It is the contention of the appellant that he was denied the opportunity to contest the waiver and, had he been given such opportunity, he might have been able to prevent Dr. Davis from testifying. However, since counsel for the appellant objected to the testimony of Dr. Davis when he was called as a witness, and made explicit her objection, and the court ruled against her, we see no merit in appellant's contention, and though counsel was not present at the time of waiver, no prejudice followed the court's action since counsel's objection at the trial had the same effect as though she had notice and made objection to the waiver at the time of the ruling on the application therefor.
The next contention of the appellant was that the trial judge, both during the course of the trial and in his charge to the jury, made repeated references to the fact that the Behavior Clinic was created by the court, thus, it is alleged, giveing added weight to Dr. Davis' testimony. We see no merit in this contention either, since all the trial court did was to make reference to the fact that the Behavior Clinic, who employed Dr. Davis, was the creature of the court and the references to it lent no undue sanction to his testimony.
The next contention of the appellant wherein he alleges he was denied due process of law is in the court's refusal to grant his motion for the issuance of a subpoena for Judge Troutman, before whom the application for the writ of habeas corpus was to be held. The purpose of Judge Troutman's presence was to have him testify to a collateral matter concerning the appellant's withdrawal of his petition for the writ and, in no wise, had any bearing on the issues of the trial and, accordingly, we dismiss it.
The main contention of the appellant concerns itself with the refusal by the trial judge to permit counsel for the appellant, during the trial, to examine the statement given to the police by the appellant in which was related an admission by Diehl that immediately after the appellant had grabbed the gun on the front seat, and the decedent had grabbed for his arm, a struggle ensued between the decedent and the appellant in the back seat during the interval it took for him to pull the car to the side of the road, after he became aware of what was going on. The statement was shown to the witness, Diehl, and marked for identification, but never offered in evidence, and upon demand by counsel for the appellant, the District Attorney refused to let appellant's counsel look at it, which refusal was sustained by the trial judge. After the verdict of guilty of murder in the first degree, in the jury's determination of punishment under the Pennsylvania Split Verdict Act,*fn1 the appellant, under cross-examination by the Commonwealth, was shown his statement and the related statement of Diehl that there was a struggle in the back seat.
A careful review of Diehl's testimony shows that Diehl not only never admitted to a struggle in the back seat while he was stopping the car, but carefully refrained from testifying to any occurrence in the back seat. On cross-examination, at one place, he stated he did not know how the decedent got over the front seat, that he heard no particular noises and that he "didn't hear a thing", although he did testify there would have to be some noise with the sheriff going over the back seat - which he later corrected to front seat - and that he heard no outcry or noise indicating pain. All of Diehl's testimony concerned itself with matters preceding the decedent's getting into the back seat and, accordingly, the jury had nothing before it indicating a struggle which was an area of vital importance to the defendant's case. Additionally, there was nothing in the record to substantiate the trial judge's charge that decedent "fell" over the front into the back seat. However, all indications surely point to a struggle in the back seat of the car in corroboration of Diehl's statement the morning after the crime and withheld from the jury by the prosecutor. It could not have been by accident or from a fall over the front seat that the body of this powerfully-built man of 5 feet, 5 1/2 inches, weighing 245 pounds, became wedged on the floor between the rear seat and the back of the front seat, a space of 12 1/2 inches, with the rear seat some 14 inches above the floor, with his head against the door so that when Diehl opened the car, it extended out beyond the door. The overall length of decedent's body was 5 feet, 5 1/2 inches, or 65 1/2 inches, and the width of the car measured, between the rear doors, 5 feet, 7 inches, and in order to extricate the decedent's body, it was necessary to remove the rear seat of the car. Nor does the position of the appellant at the time Diehl opened the door detract, in any wise, from the shooting being the result of a struggle for Diehl repeatedly testified that as he was opening the door, he heard the shot and then saw the flash of fire and saw appellant partially sitting on the corner of the rear seat. There was only one shot fired and it entered the decedent's body at the upper left quadrant of the abdomen and was located at a level 41 1/2 inches above that of the undersurface of the heel and 13 inches below that of the suprasternal notch, breastbone, and 6 1/4 inches to the left of the mid-line. It emerged from the right side of his body and struck the pillar separating the front door from the rear door on the left-hand side of the car, 10 inches above the floor. The physical facts belie Diehl's testimony at the trial, for it showed that the decedent was shot by the appellant while he was partially seated in the opposite corner of the car while the decedent was on the floor wedged between the rear of the front seat and the back seat. It is submitted that it would ...