Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
In this habeas corpus proceeding, in which the writ was denied,*fn1 we are concerned with an issue which arises under the Due Process Clause of the Fourteenth Amendment, an issue which is almost the same as that which was before us in United States ex rel. Thompson v. Price, 258 F.2d 918, 3 Cir., certiorari denied 358 U.S. 922, 77 S. Ct. 295, 3 L. Ed. 2d 241 (1958), and which we there decided against the relator. The operative facts in the case at bar are somewhat different and we reach a different result.
Anthony Scoleri was indicted, tried, convicted and sentenced to death by the Court of Oyer and Terminer, Philadelphia County, for the felony murder of Max Gordon in Philadelphia on August 28, 1958. The trial took place November 17 through November 26, 1958. A jury was employed. During the prosecution's case-in-chief Richard Febo testified that he had known the relator for about eighteen years and at one time had been sentenced to prison with him. Scoleri's counsel moved for the withdrawal of a juror. This motion was denied but the court informed the jury that it would be charged later "with respect to that kind of testimony". There followed a conference at side-bar as to the method of charging the jury but it is unnecessary to detail that conference here. At a later point in the trial, when Lieutenant William Del Torre of the Philadelphia Police Force, the expert in charge of its ballistics laboratory, was testifying, the issue with which we are concerned came squarely before the trial court. The Assistant District Attorney stated: "I offer to prove for the purpose of penalty the prior record of convictions for armed robbery and burglaries of the defendant through the original bills of indictment * * * and through identification witnesses." Scoleri's counsel objected to any proof of his client's criminal record, specifically relying on the Due Process Clause. The objection was overruled and Scoleri's criminal record was put before the jury, with an instruction, however, that the record was to be considered by the jury solely in connection with fixing the penalty. The court admonished the members of the jury that "you are not to consider this record in any manner whatsoever in your consideration of the facts." This admonition was repeated later in the court's charge to the jury.*fn2
It was thus brought to the attention of the jury that Scoleri had been convicted of or had pleaded guilty to twenty-five different charges of armed robbery. The jury found Scoleri guilty of first degree murder and returned "Death" as the penalty. That sentence was imposed by the court. A motion for a new trial based on the introduction of Scoleri's criminal record was overruled. The Supreme Court of Pennsylvania affirmed the judgment, three Justices dissenting. The Supreme Court of the United States denied certiorari. See note 1, supra. Habeas corpus was denied by the court below. The appeal at bar followed.
On August 28, 1958, the day of Gordon's murder and thereafter until its amendment by the "Split-Verdict Act" of December 1, 1959, P.L. 1621, Section 1, 18 P.S. § 4701 (Supp.),*fn3 Section 701 of the Pennsylvania Criminal Code of 1939 applied in cases of first degree murder. The second paragraph of Section 701 provided in pertinent part: "Whoever is convicted of the crime of murder of the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict. The court shall impose the sentence so fixed, as in other cases. * * *"
Under that portion of the second paragraph of Section 701 of the Criminal Code of 1939 quoted, the jury had the duty of determining the penalty when, as in Scoleri's case, they convicted a defendant of first degree murder. The precursor of the statute referred to was the Act of May 14, 1925, P.L. 759. The earlier Act need not be quoted here for, insofar as the essential elements of the instant case are concerned, its substance was the same. In respect to its effect, Judge Maris of this court, in United States ex rel. Thompson v. Price, 258 F.2d at p. 921, correctly and succinctly stated: "The Act of 1925 was interpreted by the Supreme Court of Pennsylvania to permit the admission of evidence of prior [unrelated] convictions solely for the purpose of enabling the jury, after it has found the accused guilty of first degree murder, to know what manner of man he is and whether he is entitled to mercy when they undertake their task of deciding what penalty should be imposed upon him." See Commonwealth v. Parker, 294 Pa. 144, 151-155, 143 A. 904, 906-907 (1928), in which Chief Justice von Moschzisker considered the effect upon the admissibility of evidence of prior convictions under the Act of the rule of evidence that, in the trial of a defendant for a crime, evidence of other independent, unconnected offenses committed by him is not admissible to establish his guilt of the crime for which he is on trial. As Judge Maris stated, id. supra, 258 F.2d at p. 921, "The Chief Justice stated that since the statute required the jurors to assess the punishment and permitted them to extend mercy in a proper case by reducing the penalty to life imprisonment, the jury should be permitted to have the same sort of information that a judge considers when he decides as to the punishment for crime. But since in Pennsylvania the jurors may not render piecemeal verdicts there is no provision for separate inquiry. Hence, concluded the Chief Justice, their single verdict must include both their finding as to the defendant's guilt and their determination as to the penalty to be imposed upon him." Chief Justice von Moschzisker concluded that the prescribed statutory practice was a permissible and proper one.
This ruling was followed by the Supreme Court in later cases*fn4 and, until the amending statute was passed, was the law of Pennsylvania.*fn5 It was, as we have stated, followed at Scoleri's trial, despite objections, and was approved by the Supreme Court of Pennsylvania on appeal by a vote of four Justices to three. See Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960). We reiterate that, in United States ex rel. Thompson v. Price, supra, this court, with two judges dissenting on petition for rehearing, held the practice not to be a violation of the standards of fundamental fairness required by the Fourteenth Amendment. In the case last cited, Judge Hastie, in a concurring opinion, made it clear that he would have dissented if the record of Thompson's conviction by a court martial had not been admitted into evidence not only without objection but with the consent of defense counsel. In the instant case there is no dispute that the record of Scoleri's twenty-five prior unrelated convictions of, or pleas of guilty to, charges of robbery with violence was objected to on the grounds of violation of the guarantee of due process; it is also plain that these objections were adhered to throughout the trial, were asserted in the Supreme Court of Pennsylvania, in the Supreme Court of the United States and in the court below.
The appellee asserts that Scoleri himself opened the door to the admission in evidence of his criminal record, and thereby, in effect, waived his rights under the Fourteenth Amendment. The appellee relies on five incidents which occurred at the trial. First, the appellee points to Scoleri's testimony on direct examination concerning his desire to take Ricky Woods, one of the robbers who had been shot in the holdup, to the hospital. At this point, he testified, Dante Scoleri, his brother, told him: "Tony, with your record they will never believe you weren't there". Second, Scoleri also testified on direct examination that when he was asked for help by one of the men who had engaged in the hold-up, he said: "* * * I told him I had my back time, 30 years - 30 years parole hanging over my head, and there wasn't much I could do without becoming involved." Third, when Scoleri was asked by his counsel who Richard Febo was, he replied: "Richard Febo was my accomplice when we were arrested in 1948 for a series of armed robberies." Four, the appellee asserts that Doctor Anthony F. Vasquez, pastor of St. John the Baptist Church, in Philadelphia, testifying on Scoleri's behalf made reference to Scoleri's criminal record, to his imprisonment and to his being on parole. Five, that Ida Iocco, a witness called on behalf of the State, testified on cross-examination in reply to the question who is Febo, "He is a friend of Tony's [Scoleri's]. He was in prison with Tony, I understand, I was told." The appellee points out that Scoleri's counsel made no objection to this statement by Iocco.
But the first attempt at introduction of evidence relating to Scoleri's criminal record was at p. 489 of the transcript of his trial and its first admission was at p. 490 over Scoleri's counsel's objection. A defense motion to withdraw a juror was then denied. The formal introduction of Scoleri's record of twenty-five convictions of or pleas of guilty to armed robbery was at pp. 626-633 of the transcript. At this point the fat had already been put in the fire and the only statement respecting imprisonment or crimes of Scoleri preceding pp. 626-633 and 489-490 was that of Iocco who said at p. 470 that she had been told that Febo and Scoleri had been in prison together. True, Scoleri's counsel or the prosecuting attorney should have moved that this hearsay statement be stricken from the record or the alert trial judge should have done so sua sponte. We cannot treat this hearsay evidence as a waiver of constitutional rights by Scoleri or construe it as an escalator to precipitate twenty-five convictions of or pleas of guilty to charges of armed robbery into the record. Putting the matter bluntly the appellee's argument seems to have been advanced as an afterthought. It is totally lacking in validity. We cannot deem a right inhering in a defendant by virtue of the Due Process Clause of the Fourteenth Amendment to be so easily waived. Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942).
In respect to the habitual criminal statutes and their applicability, we point out that we are dealing here with a death sentence. The danger resulting from prejudice is always enhanced in a capital case: passions run high, and the penalty is irreversible. Under the habitual criminal statutes the Supreme Court of the United States has permitted evidence of prior unrelated crimes to come before a jury. But the admission into evidence of these prior convictions could, at most, subject the defendant to an additional prison term as a recidivist. The case now before us involved a trial for a capital crime, a crime punishable by death. To say that such evidence is permissible in the former situation and therefore a fortiori in the latter, is to ignore the crucial distinction between a trial which could result only in a prison sentence and one which could and in this case did lead to the imposition of the death penalty. The Supreme Court has recognized clearly the validity of this kind of distinction in Betts v. Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942). It was there held that although due process does not require that an indigent defendant be furnished counsel in a non-capital case, where the crime is one punishable by death counsel must be provided. The Court stated: "That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial. In the application of such a concept, there is always the danger of falling into the habit of formulating the guarantee into a set of hard and fast rules, the application of which in a given case may be to ignore the qualifying factors therein disclosed." We think that the principle so well illustrated by the decision in Betts v. Brady, supra, is applicable at bar.
This court, as presently constituted, limits the position that it took in United States ex rel. Thompson v. Price to cases in which the defendant did not object to the admission into evidence of his prior record of unrelated criminal convictions. The issue before us was well put by the Supreme Court in Michelson v. United States, 335 U.S. 469, 475-476, 69 S. Ct. 213, 93 L. Ed. 168 (1948), where it was stated: "The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.", citing 1 Wigmore, Evidence (3rd ed., 1940) Section 57.
Despite the careful charge of the experienced judge presiding at Scoleri's trial, in which he explained to the members of the jury their function of finding the defendant guilty or not guilty of murder and their separate function of fixing the penalty of death or life imprisonment, we cannot believe that the procedural scheme imposed by Section 701 of the Criminal Code of 1939 and the "Parker Rule" would permit the jurors to put the knowledge of Scoleri's twenty-five convictions or pleas of guilty out of their minds while considering his guilt or innocence. Certainly such a feat of psychological wizardry verges on the impossible even for berobed judges. It is not reasonable to suppose that it could have been accomplished by twelve laymen brought together as a jury. The admission of such evidence in Scoleri's trial must therefore be deemed to have been gravely prejudicial. We conclude that Scoleri's trial in this respect was so fundamentally unjust as to cause the trial court to lose jurisdiction. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The conclusion that Scoleri was overreached by the procedure followed at his trial is irresistible. Cf. United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407 (3 Cir.1951), certiorari denied, 345 U.S. 904, 73 S. Ct. 639, 97 L. Ed. 1341 (1953). Mr. Justice Burton put the answer to our present inguiry succinctly when he stated in Bute v. Illinois, 333 U.S. 640, 649, 68 S. Ct. 763, 92 L. Ed. 986 (1948), that due process under the Fourteenth Amendment "* * * has reference * * * to a standard of process that may cover many varieties of processes that are expressive of differing combinations of historical or modern, local or other juridical standards, provided they do not conflict with the 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions * * *.'" Here the conflict is obvious and glaring.
The judgment of the court below will be reversed with the direction to grant the writ of habeas corpus. The Superior Court of Pennsylvania has held that no issue of double jeopardy can be raised under the circumstances. Commonwealth v. Townsend, 167 Pa.Super. 71, 76-77, 74 A.2d 746, 749 (1950), certiorari denied, Townsend v. Burke, 340 U.S. 915, 71 S. Ct. 286, 95 L. Ed. 661 (1951).*fn6 Scoleri may therefore be promptly retried by the Commonwealth. The "Split-Verdict Act" of December 1, 1959, 18 P.S. § 4701 (Supp.), will, of course, be applicable.
GOODRICH, Circuit Judge participated in the consideration of this case but died prior to the filing of this opinion.
KALODNER, Circuit Judge (concurring).
I have joined in the denial of the petition for rehearing since all the points raised in it with the exception of that which relates to the "failure to count the vote" of our deceased brother, Goodrich, have already been considered by the Court en banc.
I must add that I deem the point raised with respect "to the failure to count the vote of Judge Goodrich" to be without merit.
KALODNER, Circuit Judge (dissenting).
I dissent from the majority's disposition for two reasons:
"(1) I disagree with its holding that the Pennsylvania procedure under which Scoleri was tried transgressed the bounds laid down for state procedure by the due process clause of the Fourteenth Amendment, and
"(2) I disagree with its holding that Scoleri did not waive the protection which the majority says was accorded him by the federal due process clause."
It must immediately be noted that in condemning as an abuse of federal process the Pennsylvania procedure pursued in the Scoleri trial the majority is overruling - and not merely limiting, as it asserts - our express ruling to the contrary just four years ago in United States ex rel. Thompson v. Price, 258 F.2d 918, 922, 3 Cir., cert. den. 358 U.S. 922, 77 S. Ct. 295, 3 L. Ed. 2d 241 (1958). In Price, "We [concluded] that the Pennsylvania procedure here under attack does not pass the bounds laid down for state procedure by the due process clause." We prefaced that holding with the statement that "It is well settled that no particular form of procedure in state criminal trials is guaranteed by the due process clause of the Fourteenth Amendment", and cited in support the teaching of the Supreme Court of the United States that "it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice."*fn1
While this Court can overrule its prior holding in Price, it can not overrule, nor can it reject, the teaching of the Supreme Court to which we gave effect four years ago in that case.
The case books abound with instances in which the Supreme Court has applied the principles stated in Price. A year ago, in Cohen v. Hurley, 366 U.S. 117, 81 S. Ct. 954, 6 L. Ed. 156 (1961) it was held, for example, that exemption from compulsory self-incrimination is not safeguarded as against state action by the Fourteenth Amendment. In Cicenia v. La Gay, 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958) it was held that the refusal to permit one accused of murder the prvvilege of consulting his counsel while being questioned by State Police between arrest and arraignment did not of itself violate federal due process. It is interesting to note that in the case just cited this Court's ruling to the same effect was affirmed.*fn2
In Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97 (1908) it was held that putting the accused on the stand as a witness for the State did not violate federal due process; in Maxwell v. Dow, 176 U.S. 581, 20 S. Ct. 448, 44 L. Ed. 597 (1900) a provision in the Utah Constitution for a jury of eight jurors in all state criminal prosecutions, for other than capital offenses, was held beyond the reach of federal due process; in Hurtado v. People of California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884) it was held that federal due process does not require an indictment by a Grand Jury in a prosecution by a State for murder.
Well over half a century ago, the Supreme Court, in Rogers v. Peck, 199 U.S. 425, pp. 433-434, 26 S. Ct. 87, p. 89, 50 L. Ed. 256 (1905) in discussing the sweep of the federal writ of habeas corpus said:
"The extent of the right of the Federal courts to interfere by the writ of habeas corpus with the proceedings of courts and other authorities of a State is carefully defined by statute. When a prisoner is in jail he may be released upon habeas corpus when held in violation of his constitutional rights. * * *
"The reluctance with which this court will sanction Federal interference with a State in the administration of its domestic law for the prosecution of crime has been frequently stated in the deliverances of the court upon the subject. It is only where fundamental rights, specially secured by the Federal Constitution, are invaded, that such interference is warranted." (emphasis supplied)
In Snyder v. Mass., 291 U.S. 97, p. 105, 54 S. Ct. 330, p. 332, 78 L. Ed. 674 (1934) Mr. Justice Cardozo, speaking for the Supreme Court, spelled out the doctrine under review as follows:
"The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. * * * Its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar." (emphasis supplied)
The latter statement is particularly pertinent here in view of the fact that the majority opinion makes it clear that its condemnation of the Pennsylvania trial procedure which permitted introduction of Scoleri's prior criminal record for the avowed purpose of guiding the jury in the fixing of sentence in the event of a guilty verdict is premised on its conclusion that the practice was "gravely prejudicial" to the extent that it was "fundementally unjust" and resulted in Scoleri being "overreached".
The majority has disregarded the repeated admonitions of the Supreme Court that individual judicial notions and concepts of "unfairness" and "prejudice" and "fundamental injustice" with respect to State criminal procedures, no matter how appealing to the American sense of fair-play, is not the critical test to be applied in the application of the federal due process clause.
In Bute v. Illinois, 333 U.S. 640, 68 S. Ct. 763, 92 L. Ed. 986 (1948) which the majority has cited in support of its disposition, the Supreme Court recognized and applied the long-established doctrine that States "should have the widest latitude in the administration of their own systems of criminal justice" and held that the reach of federal due process did not extend to the failure in a non-capital case of a State court "to inquire as to [the petitioner's accused's] desire to be represented by counsel, or his ability ...