462 F.

2d 592

UNITED STATES ex rel. Harry E. CAREY, Appellant,

v.
Robert L. JOHNSON, Superintendent, State Correctional
Institution, Graterford, Pennsylvania.
No. 71-1722.

United States Court of Appeals,

Third Circuit.
Submitted June 12, 1972.
Decided June 20, 1972.

Harry E. Carey, pro se.

James D. Crawford, Deputy Dist. Atty., Philadelphia, Pa., for appellee.
Before SEITZ, Chief Judge, VAN DUSEN and ADAMS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:

Appellant, Harry E. Carey, was convicted in 1967 in a Pennsylvania court of

the crimes of aggravated robbery and rape and was sentenced to concurrent
terms of five to twenty years. His appeals in the state courts were unsuccessful,
and Carey filed a petition for habeas corpus in the district court. After correctly
determining that the cognizable claims in the petition 1 had been adequately
considered by the state courts, the district court, without holding its own
hearing,2 denied relief.

In this appeal, Carey first contends that the in-court identification of him by the
prosecutrix was tainted by a prior photographic identification so "impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967,
971, 19 L.Ed.2d 1247 (1968). The district court found as a fact that the in-court
identification of Carey had a basis independent of the photograph, and that

therefore Carey was not entitled to federal habeas relief. As a result of

reviewing the state court record, it is apparent that the identification of Carey
by the prosecutrix arose from observations of him at the scene of the crime, and
that no taint would attach to the subsequent in-court identification from the use
of the photograph.
3

Carey next attacks that portion of the charge in which the trial judge stated:

4
"Mrs.
Gaffney testified that she is certain that the man who raped her was this
defendant. The defendant did not take the stand and deny that he raped Mrs.
Gaffney, but the circumstance that the defendant did not testify in his own defense
cannot be used against him and no inference of his guilt may be drawn from the
circumstance that he did not testify."
5

It should be noted that a point for charge similar to the one given was requested
by Carey's counsel. More important, the charge was not inconsistent with the
mandate of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106
(1965), where the Supreme Court stated that the Fourteenth Amendment
forbids "instructions by the court that such silence [of the accused] is evidence
of guilt." Id. 615, 85 S.Ct. 1233. Here the court emphatically told the jury that
they were not permitted to draw an inference of guilt from Carey's silence, and
hence no error was committed.

As his final contention, Carey asserts that fundamental error occurred when the
prosecution introduced evidence that three days prior to the commission of the
crime for which he was on trial, Carey had committed a similar assault on
another woman,3 in the same geographical area where the rape was allegedly
perpetrated. The prosecution did not introduce this evidence as proof of a prior
conviction; rather, it relied on the well-settled Pennsylvania rule that evidence
of similar sex crimes may be introduced to show the defendant's "state of
mind." Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949);
Commonwealth v. Ransom, 169 Pa.Super. 306, 82 A.2d 547 (1951); see 2
Wigmore, Evidence Sec. 357 (3d Ed.). Such a rule of evidence, properly
applied, does not violate due process. See Ciucci v. Illinois, 356 U.S. 571, 78
S.Ct. 839, 2 L.Ed.2d 983 (1958); Ross v. Maroney, 372 F.2d 53 (3d Cir. 1967).
Here the prior crime was of a similar nature and close in time and place to that
for which Carey was on trial. We hold, therefore, that no constitutional error
was committed when the evidence was allowed to go to the jury.

Accordingly, the judgment of the district court denying habeas corpus relief
will be affirmed.

The district court found that one of the claims had not been presented in state
court and denied relief on that claim without prejudice for failure to exhaust
state remedies. 28 U.S.C. Sec. 2254

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)

The prosecution and defense stipulated that Carey had been convicted of the
prior crime, but was not yet sentenced. The trial judge carefully instructed the
jury concerning the limited use it might make of the evidence of the previous
assault