Staley, Chief Judge, Kalodner, Circuit Judge, and Sheridan, District Judge.
Following a jury trial in November, 1962, in the Court of Oyer and Terminer, Lackawanna County, Pennsylvania, in which he and two co-defendants were found guilty of rape, the appellee John W. Singer, was sentenced to a 6 to 15 year prison term which he is now serving in the Eastern Correctional Institution at Graterford, Pennsylvania.
The District Court for the Eastern District of Pennsylvania, in an Order entered October 27, 1966, granted Singer's petition for a writ of habeas corpus on its finding that a statement which Singer signed in the course of police investigation was "involuntary", and that its admission into evidence at his trial violated his federal constitutional rights.*fn1
The respondent in the habeas corpus proceedings, David N. Myers, Superintendent of the state prison, has appealed. He contends: (1) the statement was "in all respects voluntary"; (2) in any event, Singer's failure to raise the question of the voluntariness of the statement at his trial "constituted a deliberate circumvention of state procedures" barring federal review; and (3) even if Singer is not now barred from raising the question, the District Court should have "returned 'the case' to the state court for an evidentiary hearing on this issue".
Singer in reply urges that: (1) the District Court's conclusion that his "confession" was "coerced" and "involuntry" is supported by the evidence; (2) his failure to raise the question of the voluntariness of his "confession" at his trial does not bar him from relief in the Federal courts; and (3) the District Court did not err in refusing to return the case to the state courts for a hearing on that issue.
The available record discloses that at about 9:30 or 10:00 P.M. Friday, October 19, 1962, a car driven by Singer's codefendant, Douglas Reilly, with Paul Snopek, Singer's other co-defendant, in the front seat and Singer in the rear, pulled over to the curb where a twenty-six year old woman was walking, and one of the three forced the woman inside. Reilly then drove to a mountain road where the woman was allegedly raped by at least two of the men.
There is some dispute as to the extent of Singer's participation in the crime. There was trial testimony that he was one of the men who raped the woman. Singer testified, however, both at the trial and in the District Court, that he never had intercourse with the woman or attempted to force her to have intercourse with him, that he in fact tried to protect her from the advances of the other two men and that in doing so, a fight ensued during which he was clubbed unconscious.
It is undisputed that a fight did break out among the men at the scene of the rape; that Singer was knocked unconscious and left there by Reilly and Snopek; upon regaining consciousness, he walked to the main highway and obtained a lift to a friend's home about 1:00 A.M., Saturday morning, October 20, 1962; he later went home and fell asleep at about 2:30 A.M.; he was awakened at about 4:30 A.M. by Pennsylvania State Police who arrested him and took him to the police barracks for interrogation in connection with the rape.
Singer was interrogated at the barracks from about 5:00 A.M. to about 8:30 A.M. at which time the police took him to the scene of the occurrence where he pointed out to them certain details of the crime. The police then took him to a restaurant for breakfast, and about 10:00 A.M., he and the officers returned to the police barracks. Shortly thereafter, Singer's interrogation continued, and about 2 P.M. Saturday afternoon, he signed a statement typed by the police.
In it, Singer said that Snopek forced the woman into the car and that Reilly then drove to a mountain road; Singer tried to have intercourse with the woman, but was unsuccessful; the other two men then tried to molest her, whereupon he went to her aid and the fight described above broke out.
Singer claims that while he was in police custody, he was tired from lack of sleep, and that as a result of his earlier fight with Reilly and Snopek, his face looked like a "beefsteak, bruised, red and well-battered", and that he could not hear out of his left ear.*fn2 He also claims that during the time he was in custody, the police denied his request for a doctor and a lawyer; several statements were prepared by the police which he refused to sign; and that he finally signed one statement without reading it, because, in his words:
"Well, I -- like I say, I wore out. I was -- I knew I had no other help.
"I knew they would keep questioning me until they got it the way they wanted it anyhow. They wouldn't let ...