Commonwealth ex rel. Fletcher v. Cavell , 395 Pa. 134 ( 1959 )

Opinion by

Mr. Chief Justice Jones,

By this petition for a writ of habeas corpus, which is here under our original jurisdiction, the relator, James Morris Fletcher, seeks release from his present restraint in the Western State Penitentiary where he is serving a life sentence for his conviction of murder in the first degree.

The principal contention, which the petitioner now advances, was urged upon the court below in support of his motion for a new trial following his conviction. After the new trial motion had been denied and sentence of life imprisonment, as fixed by the jury’s verdict, had been imposed upon the defendant, he appealed the judgment of sentence to this court. Here, he assigned as trial error the same reasons which he had relied upon in the court below. Following argument of the appeal, we overruled the assignments of error and affirmed the judgment of sentence (Commonwealth v. Fletcher, 387 Pa. 602, 128 A. 2d 897). The defendant then petitioned the Supreme Court of the United States for a writ of certiorari which was denied sub nom. Fletcher v. Pennsylvania, 354 U.S. 913.

Fletcher’s main contention in support of his petition for a writ of habeas corpus is that he was denied due process at his trial for murder, in violation of the 14th Amendment of the Federal Constitution, by not being permitted to challenge, either for cause or peremptorily, two of the sworn jurors in circumstances about to be related.

Pursuant to the trial procedure which obtains in Greene County (where Fletcher’s trial was had), as well as in many other counties of the Commonwealth, a juror who has been examined on his vow dire and accepted by both sides is immediately sworn upon his being accepted and is not again sworn. In short, the jury, when completed, is not sworn as a body, each juror having been sworn separately.

After eight jurors had been selected and so sworn, the defendant’s counsel moved the court for leave to challenge juror number one for the reason that he was the son-in-law of a county detective who had been an investigating officer in the case, and juror number seven because of her (actually very remote) relationship to the victim of the felonious homicide for which the defendant was being tried. These matters, concerning jurors one and seven, were not known to the defendant at the time those jurors were selected and sworn. When the motion to challenge was made, the defendant had twelve peremptory challenges left. The trial judge ruled that the proposed exercise of challenges came too late and, accordingly, denied the motion. This ruling Fletcher assigned as trial error on his appeal to this court. It was then fully considered by us and rejected for the specific reason that “Since defendant made no objection to the Court’s failure to discharge these jurors until after the jurors had been sworn, the verdict cannot be challenged because of any juror’s disqualification ...” In the course of our discussion of the issue thus raised by the appellant we quoted from Section 9 of the Act of May 17, 1939, P.L. 157, 17 PS §1340, just as the court below had done in denying the defendant’s motion for a new trial. Section 9 provides that “After jurors are sworn without objection all objections to their qualifications as prescribed by this act or to the manner of their selection, drawing, or summoning .shall be deemed to have been waived.” It so happens, however, that the Act of 1939 is applicable to third class counties whereas Greene County, the venue of Fletcher’s trial, is a sixth class county.

It is plain enough that the fact that the Act of 1939, supra, was not applicable to trials in Greene County was of no material moment whatsoever and does not affect in the slightest the merit of either the lower court’s decision or our affirmance. The applicable common law rule of criminal procedure uniformly enforced throughout the State is the same as that declared by the Act of 1939, supra, for counties of the third class. The controlling rule was well stated in Traviss v. Commonwealth, 106 Pa. 597, 607, where the defendant was likewise appealing from a sentence imposed upon a first degree murder conviction. As there enunciated, “The time to challenge is before the juror is sworn; if not exercised then, the right is waived. That waiver may be relieved against when the party affected has been intentionally misled or deceived by the juror or the opposite party. . . .” Then followed the observation that “it is not even pretended there was anything of the kind in this case” — a circumstance that is equally the situation in the case now before us.

In Commonwealth v. Walker, 283 Pa. 468, 472-473, 129 A. 453, before quoting the rule as stated in Traviss v. Commonwealth, supra, this court declared that, “It is the duty of parties to ascertain, by proper examination at the time the jury is impaneled, the existence of any reasons for objection to the jurors. Here there was no deception by the juror or anyone as to the fact; no effort was made to elicit such information; the failure to do so and to make objection at the proper time operates as a waiver [citing authorities from various jurisdictions].” The Walker case was also an appeal by a defendant from a sentence imposed upon a conviction for murder in the first degree.

In Commonwealth v. Penrose, 27 Pa. Superior Ct. 101, 111, President Judge Bice said, after noting that, “The only remaining question that need be noticed is that which relates to the refusal of the court to grant a new trial, upon the ground, not discovered until after the tidal, that one of the jurors was an alien. It is to be observed in this connection that . . . when he was drawn as a juror in the defendant’s case he was accepted and sworn without being interrogated by counsel on either side as to his qualifications .... [The disqualification] would have been disclosed, if he had been interrogated at the time he was sworn, but the defendant voluntarily omitted to avail himself of the means at his hand for informing himself and the court upon the subject. He preferred, perhaps, to hold them in reserve to be used in the event of an adverse verdict, as he had a perfect right to do, if the position of his counsel is correct. We think, however, that their position is not tenable.”

Again, in Romesberg v. Merrill, 99 Pa. Superior Ct. 197, 200, the court said, “As stated above, the time to challenge is before the juror is sworn. If not exercised then, the right is waived. Traviss v. Com., supra; Com. v. Dombek, 268 Pa. 262; Com. v. Penrose, 27 Pa. Superior Ct. 101; Com. v. Walker, 283 Pa. 468. There was no attempt to show that there was any misconduct.” The same was equally true here.

But, even if it had been permissible for the defendant to challenge for cause after the jurors had been sworn, it clearly appeared at the time of Fletcher’s appeal to this court that there was no valid cause for challenging either juror number one or number seven.

In Commonwealth v. Peronace, 328 Pa. 86, 195 A. 57, it was held that the relationship between a juror and a county detective who was the active prosecutor in the case did not justify a challenge of the juror for cause. This fully answered the defendant’s objection to juror number one who was a son-in-law of a county detective, a witness in the case. And, as to juror number seven, the relationship between her and the victim of the homicide was that of a second cousin, once removed; that she and the deceased had lived twenty-five miles apart; and that they had never visited each other during their lives.

As recognized in Commonwealth v. Gelfi, 282 Pa. 434, 437, 438, 128 A. 77, “The test of disqualification is the juror’s ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence, and this is to be determined by the discretion of the trial judge, based upon the juror’s answers and demeanor .... Nothing short of a palpable abuse of discretion justifies a reversal in passing on a challenge for cause. . . .” In the present case, the trial judge was most circumspect in ascertaining whether or not the two jurors whom the defendant belatedly sought to challenge were capable of rendering fairly a verdict on the evidence adduced. In deciding that they were so qualified the trial judge cannot justly be held guilty of an abuse of discretion.

In any event, the remedy of habeas corpus may not properly be used as a substitute for an appeal for the review of alleged trial errors which could have been considered and, if they were actually such, could have been corrected in the regular course of appellate review: Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 144, 137 A. 2d 236; Commonwealth ex rel. Harris v. Burke, 374 Pa. 43, 46, 96 A. 2d 909; Commonwealth ex rel. Marelia v. Burke, 366 Pa. 124, 126, 75 A. 2d 593; and numerous cases there cited. The fact is that in the instant case the want of due process which the petitioner alleges rests upon alleged trial error which we had reviewed on his appeal and after thorough consideration had rejected.

Commonwealth ex rel. Penland v. Ashe, 341 Pa. 337, 340, 19 A. 2d 464, aptly states that, “ ‘The writ of habeas corpus can never be used as a substitute for an appeal to test the correctness of the administration of the law in connection with a commitment [cases cited], but where such an order is beyond the power or jurisdiction of the tribunal entering it, the one thereby detained may be released on habeas corpus [cases cited].’ ”

In the time-honored decision in Passmore Williamson’s Case, 26 Pa. 9, 17, Pennsylvania’s eminent jurist, Honorable Jeremiah S. Black, in discussing the purpose of the writ of habeas corpus, enunciated the following presently significant utterance: “A habeas corpus is not a writ of error. It cannot bring a case before us in such a manner that we can exercise any kind of appellate jurisdiction in it. On a habeas corpus, the judgment even of a subordinate state court cannot be disregarded, reversed, or set aside, however clearly we may perceive it to be erroneous, and however plain it may be that we ought to reverse it if it were before us on appeal or writ of error. We can only look at the record to see whether a judgment exists, and have no power to say whether it is right or wrong.”

In Halderman’s Petition, 276 Pa. 1, 2, 119 A. 735, we pointed out that “Except in unusual cases, where the proceeding has been adopted in furtherance of the prompt administration of justice (e.g. Com. v. Shortall, 206 Pa. 165), the writ of habeas corpus can be effectively invoked here by one convicted of crime only where it appears the sentencing court was without jurisdiction (Com. v. Ketner, 92 Pa. 372), where the record shows no crime was committed, or the passing of an illegal sentence (Halderman’s Case, 53 Pa. Superior Ct. 554), or where there is an improper detention of the relator after the expiration of his term of imprisonment by lapse of time or pardon.”

The petitioner’s additional contentions (no doubt thrown in as make-weights) verge on the trifling. He complains that the trial judge in chambers (the defendant and his counsel not being present) interrogated, briefly in fact, the juror whom the defendant had belatedly sought to challenge on the ground of her relationship to the victim. Even if questionable, the court’s action in such regard could and should have been raised on the defendant’s appeal to this court. The interrogation of the juror, in the circumstances then obtaining, cannot reasonably afford a basis for a writ of habeas corpus.

The remaining complaints of the petitioner relate to two patently harmless misstatements of fact in the opinion for this court upon our affirmance of the judgment of sentence. In the one instance the opinion stated that juror number seven was between a fifth and fifteenth cousin of the victim of the homicide (one of the briefs actually so asserted) while the petitioner alleges that the relationship was that of a second cousin, once removed. Obviously, whatever the relationship was, it was remote and between two people who lived miles apart and had never visited each other. The other misstatement was that juror number one was the daughter of a county detective whereas the juror was, in fact, the son-in-law of a county detective. The original opinion for the court had accurately read,— “the husband of the daughter of a county detective” but the words “the husband of” were inadvertently omitted in the draft transcribed for filing. It is too plain for serious discussion that these mistakes of fact were manifestly unimportant and present no grounds for the granting of a writ of habeas corpus.

The petitioner implicitly concedes that the allegations whereon he seeks a writ of habeas corpus were previously considered both by the lower court and by this court in connection with his motion for a new trial. His petition alleges that, “No prior application [for a writ of habeas corpus] has been made to the Court of Oyer & Terminer of Greene County, since the issues presented herein were passed upon by that court in connection with Petitioner’s Motion for a New Trial, were adjudicated adversely to him, and that action of the lower court was sustained in direct appeal by this court in a decision reported in 387 Pa. 602, 128 A. 2d 897 (1956). The lower court being concluded by your Honorable Court’s prior decision, it would have no right to grant the relief sought herein.” And, neither would this court for the all-sufficient reason that the petitioner fails to aver any justifiable ground for the granting of a writ.

It is not open to dispute that the Court of Oyer and Terminer of Greene County had jurisdiction of the defendant and, likewise, of his trial on the indictment charging him with murder, and never lost jurisdiction. And, on appeal to this court, following his conviction, we, as the State court of last resort, held as a result of our review of the entire record that the trial had been conducted in strict accord with prescribed Pennsylvania procedures.

In Ashe v. Valotta, 270 U.S. 424, 425-426, the Supreme Court of the United States reversed an order of the District Court for the Western District of Pennsylvania granting the relator a writ releasing him from his restraint in a Pennsylvania State prison under a conviction of murder in the first degree with sentence of death. Speaking for the Court, Mr. Justice Holmes said, “There is no question that the State Court had jurisdiction. But the much abused suggestion is made that it lost jurisdiction by trying the two indictments together. Manifestly this would not be true even if the trial was not warranted by law. But the Supreme Court of Pennsylvania has said that there was no mistake of law, and so far as the law of Pennsylvania was concerned it was most improper to attempt to go behind the decision of the Supreme Court, to construe statutes as opposed to it and to hear evidence that the practice of the State had been the other way. The question of constitutional power is the only one that could be raised, if even that were open upon this collateral attack, and as to that we cannot doubt that Pennsylvania could authorize the whole story to be brought out before the jury at once, even though two indictments were involved, without denying due process of law. If any question was made at the trial as to the loss of the right to challenge twenty jurors on each indictment, the only side of it that would be open here, would be again the question of constitutional power. That Pennsylvania could limit the challenges on each indictment to ten does not admit of doubt.”

It is our opinion that the petitioner’s conviction, responsible for the restraint whereof he now complains, resulted from a fair and impartial trial which comported in all essential respects with applicable trial procedures and from competent evidence which fully disclosed the ingredients of first degree murder. Furthermore, we are unable to perceive wherein any federal question is involved by the relator’s present petition for a writ of habeas corpus.

Petition dismissed and writ denied.