United States of America Ex Rel. Ronald James Dessus, Appellant, v. Commonwealth of Pennsylvania, 452 F.2d 557 (3d Cir. 1971)

This appeal from a denial of a writ of habeas corpus, 316 F. Supp. 411, raises many well-briefed constitutional questions, of which we find three to require extended discussion:

(1) whether this court has habeas corpus jurisdiction under 28 U.S.C. § 2254(b) where no custodial sentence has been imposed;

(2) whether introduction of evidence seized by police offended the fourth amendment;

(3) the extent of state court discretion, measured against the equal protection clause, to deny requests for appointment of "such specialists as justice of the case may require" as provided in the Pennsylvania statute governing assistance of counsel for indigents in state criminal proceedings. 19 Pa.Stat.Ann. Sec. 784.

On April 3, 1966, during the early morning hours, Mrs. Lena Alexandroff, age 79, her daughter, Natalie Tuchar, 44, and her granddaughter, Paula Tuchar, 14, were brutally beaten and raped in their Philadelphia home. Immediately, police began to canvass the area for two Negro males, both approximately five feet ten inches tall, one wearing dark clothes and a light tan coat, and the other wearing dark clothes, a dark coat, and a hat. Police had already picked up one suspect when they discovered appellant and another man walking along a deserted street about five blocks from the victims' home. Appellant wore a dark suit and carried a tan trench coat under his arm; his companion wore dark clothing and a dark coat. The officers drove alongside the two and asked them where they were coming from. One man "mumbled" an inaudible response. Testimony is conflicting as to whether the officers then ordered the two men into the car or merely instructed them to step nearer the vehicle. In any event, when one of the officers emerged from the car, appellant broke and ran. While fleeing, appellant dropped the tan coat and a radio which was stolen from the victims' home; he was quickly apprehended.

Appellant, his companion, and the other suspect immediately were taken to the hospital where the victims had been admitted. Police informed Mrs. Alexandroff and her daughter, who was being treated in the same room, that they had picked up some suspects, and that they would bring the men into the room for identification. The suspects were shown singly to Natalie Tuchar and then to Mrs. Alexandroff. Mrs. Alexandroff identified appellant and his companion but did not identify the third man. Father Vladimir Borichevsky, an acquaintance of the victim, was present and testified to this identification at the trial because Mrs. Alexandroff died nineteen days after the crime as a result of injuries sustained in the attack.

Appellant was convicted on nine of ten separate indictments emanating from these events. Custodial sentences were imposed on four, including a life sentence for the murder of Mrs. Alexandroff. Sentence was suspended on the remaining five indictments upon which appellant was convicted, including that for the rape of Mrs. Alexandroff.¹ 

Appellant's habeas corpus petition extends to his convictions under all of these indictments except one: he has not presented a petition challenging the conviction of murder. Appellant argues: (1) that the testimony of Father Borichevsky concerning Mrs. Alexandroff's identification denied appellant his sixth amendment right to confront witnesses against him; (2) that the police did not have probable cause to arrest him, and, therefore, that any evidence obtained as a result of the search incident to the arrest was inadmissible; and (3) that he was denied due process and equal protection of the laws by the trial court's failure to provide him with funds to employ a psychologist to examine him and to testify at the trial.

Because the sine qua non of federal habeas corpus jurisdiction is that petitioner be "in custody,"²  we have concluded that the procedural posture of this petition prevents our consideration of appellant's contention that Father Borichevsky's testimony concerning Mrs. Alexandroff's identification of appellant denied him his rights under the confrontation clause.³  The challenged testimony related a statement of Mrs. Alexandroff that appellant raped her. Thus because appellant's murder conviction is not under review, this testimony was relevant only to the conviction for the rape of Mrs. Alexandroff. Although appellant was found guilty of this crime, he was given a suspended sentence.⁴  Without a custodial sentence, appellant was not "in custody" under that indictment within the meaning of 28 U.S.C. § 2254; thus, he may not seek federal habeas corpus relief therefrom.

The sole justification of federal habeas jurisdiction for a state prisoner is the statutory mandate that the applicant be a "person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254. Indeed, in the seminal case of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), Mr. Justice Brennan was careful to emphasize: "The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter." 372 U.S. at 430, 83 S. Ct. at 844.⁵  Thus, custody is the passport to federal habeas corpus jurisdiction. Without custody, there is no detention. Without detention, or the possibility thereof, there is no federal habeas jurisdiction.⁶ 

Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), and Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), compel no contrary conclusion. In those cases petitioners applied for habeas corpus relief while incarcerated under or paroled from custodial sentences. Similarly, in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), a prisoner serving one of consecutive or successive sentences imposed by the same sovereign was held to be "in custody" for federal habeas purposes to challenge his detention under any of the other sentences. But custodial sentences were imposed for the convictions challenged in Peyton as in all the subsequent cases which have expanded the Peyton rule.⁷  The expansion of the "in custody" jurisdictional concept has been in recognition that remaining "disabilities and burdens" which emanate from one conviction confer upon petitioners a "substantial stake in the judgment" sufficient to challenge that conviction even without present incarceration based thereon. Carafas, supra, 391 U.S. at 237, 88 S. Ct. 1556. No such stake appears here; petitioner is not in custody for one conviction which may have emanated from the testimony he seeks reviewed, and he has claimed no error in the other. A ruling in petitioner's favor could afford him no direct relief from his present detention, nor indirectly in terms of his ultimate release date. Cf. Thacker v. Peyton, 419 F.2d 1377, 1379 (4th Cir. 1969).

Like the Fifth Circuit in Westberry v. Keith, 434 F.2d 623 (5th Cir. 1970), " [w]e can find no decision by the Supreme Court nor by this circuit which would allow federal courts to take habeas corpus jurisdiction under Sec. 2254 when the petitioner has applied for the writ after suffering [no custodial sentence]." 434 F.2d at 624-625. See also, United States ex rel. Myers v. Smith, 444 F.2d 75, 77 (2d Cir. 1971). We hold, therefore, that this court is without jurisdiction to review a petition for habeas corpus where petitioner was given a non-custodial sentence. Accordingly, the confrontation issue raised by the appellant to contest his conviction for the rape of Mrs. Alexandroff is not appropriate for federal inquiry.

Appellant next claims that the police exceeded constitutional boundaries because they subjected him to arrest without probable cause, and that the discarded coat and radio, along with other items seized from his person, were inadmissible as fruits of that illegal arrest. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969). The admissibility of these items indeed depends upon the validity of appellant's arrest. This turns upon "whether, at the moment the arrest was made, the officers had probable cause to make it-whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trust-worthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. United States, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

We have noted that there was some confusion as to precisely when the arrest occurred.⁸  If police did not attempt the arrest until after appellant fled, the arrest was clearly lawful. Such "flight at the approach of strangers or law officers [is a] strong indici [um] of mens rea," and a proper factor to be considered in the decision to make an arrest. Sibron v. New York, 392 U.S. 40, 66-67, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968). Moreover, we find that if appellant's arrest occurred prior to his flight, it would still have been constitutionally permissible. The police were searching for two Negro males, both approximately five feet ten inches tall, one wearing dark clothes and a light tan coat, and the other wearing dark clothes, a dark coat, and a hat. The search was conducted at 4:30 a.m., only a few minutes after the commission of the crime, in a racially-mixed neighborhood. During this time, the police found only three individuals fitting this description.⁹  On the basis of these facts, we conclude that the officers were in possession of sufficient information to give them probable cause to make the arrest. Chambers v. Maroney, 399 U.S. 42, 46-47, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Draper v. United States, 358 U.S. 307, 313, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); United States v. Horton, 142 U.S.App.D.C. 225, 440 F.2d 253, 254 (D.C. Cir. 1971). Because the arrest was lawful, any items discarded by or seized from appellant incident to that arrest were admissible into evidence. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950); United States ex rel. Foose v. Rundle, 389 F.2d 54, 55 (3d Cir. 1968).

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Finally, we address ourselves to appellant's contention that the trial court's denial of his motion for funds to employ a psychologist contravened the due process and equal protection clauses. Appellant's principal defense at trial was insanity. Prior to trial, appellant moved the court, pursuant to 19 Pa.Stat.Ann. Sec. 784,¹⁰  to allocate funds with which to hire a psychiatrist and a psychologist. The court granted funds to hire a psychiatrist, but denied the request for funds to employ a psychologist.

Dr. Nelson, the psychiatrist employed by appellant, diagnosed appellant as a psychopathic delinquent suffering from organic brain damage, unable to deliberate prior to activity and, therefore, incapable of understanding the nature or quality of his actions. Dr. Nelson stated that he was firm in this diagnosis and that he required no further information. He testified that he based his opinion on psychological tests performed on appellant in 1952, 1955, 1959, and 1960, and that more recent tests would produce no substantial change in his diagnosis because there would be no significant differences in tests administered after the subject reached the age of six. Dr. Kool, the psychiatrist for the Commonwealth, agreed that appellant had a psychopathic personality, but he found no organic brain impairment, and concluded that appellant was sane. Appellant contends that because Dr. Kool used as a basis for his diagnosis a psychological test administered prior to trial by a psychologist employed by the state, the denial of appellant's motion for funds to employ a psychologist to make a similar test denied appellant equal protection of the laws.

We reject the notion that the introduction by the government of a psychologist-expert's testimony necessarily requires commensurate countervailing testimony for the defense. For " [o]ur concern for expert opinion to serve as a check on other expert opinion depicts a striving to assist the Court in resolving complex and elusive issues presented in proceedings of this kind, but our holdings do not mean the process is to go on ad infinitum." Proctor v. Harris, 134 U.S.App.D.C. 109, 413 F.2d 383, 387 (1969). Here, as in Proctor, there is implicit in the assignment of error the notion that such expert witnesses are adversaries. But as Chief Justice (then Circuit Judge) Burger there noted, "the fact remains that psychiatrists are physicians, not advocates." Proctor, supra, 413 F.2d at 387. Moreover, "we see no basis for assuming that one court-designated expert needs the surveillances of another psychiatrist who is thrust into what would be essentially a partisan role." Id. See also McGarty v. O'Brien, 188 F.2d 151 (1st Cir.), cert. denied, 341 U.S. 928, 71 S. Ct. 794, 95 L. Ed. 1359 (1951). Like the district court,¹¹  we find no obligation, constitutional or statutory, to provide appellant with a court-appointed psychologist to supplement the findings of the court-appointed psychiatrist who testified at appellant's behest.

We find that the trial court's denial of appellant's motion for funds to employ a psychologist did not deny appellant due process or equal protection of the laws. Whether to allocate such funds is a decision within the trial judge's discretion, Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967), cert. denied, 391 U.S. 920, 88 S. Ct. 1803, 20 L. Ed. 2d 657 (1968).¹²  We find no abuse of that discretion. Moreover, even if we were to find error in the trial judge's refusal to allocate these funds, in light of Dr. Nelson's testimony that additional psychological testing would be superfluous, the error would be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

We have examined all of appellant's additional assignments of error and find them uniformly lacking in merit.

The order of the district court denying habeas corpus relief will be affirmed.