defendant may reasonably expect under the law of Pennsylvania.
Patrolman Heagy had been mentioned in the testimony and was available. Officer Purvis was called and was subjected to cross-examination, as were the witnesses Giles,
Richardson, Mattie Spells and Officer Dubis. It was undoubtedly the relator's burden to produce witnesses who would have testified to his condition if he thought their testimony was admissible to corroborate his own. It was his burden to establish the defense of intoxication
and his failure so to do cannot be shifted to the prosecution. In this connection the relator was not a stranger in Pittsburgh, but had lived in and out of Pittsburgh since 1937, and was well acquainted with Loice and Lovie Spells and Katherine Smith, his landlady.
After careful analysis of the present petition and the evidence presented before this court, we are of the opinion that the relator is trying to shift the alleged delinquencies of his defense counsel to the prosecuting attorney and thus convert into the responsibility of the state that which we previously held was not the responsibility of the state. See United States ex rel. Thompson v. Dye, D.C., 103 F.Supp. 776.
Relator's counsel have stated that they 'lean heavily' on the decisions of the District Court and Court of Appeals in United States ex rel. Almeida v. Baldi, supra. That case is clearly distinguishable on its facts. In the Almeida case, Judge Welsh found that the prosecuting officers willfully and deliberately suppressed material physical evidence which was in the possession of the police. The Assistant District Attorney in that case, when asked, denied that there were any other bullets and further it was found that he told certain police officers at the subsequent trial of a codefendant not to mention the bullet so as to suppress knowledge of its existence. There is no allegation in the case sub judice that the Assistant District Attorney told any one to suppress evidence. All the evidence, in fact, is to the contrary.
The difference between the Almeida case and the instant case is that in the Almeida case the court found that there was active suppression of evidence, whereas in the instant case the most that can be said is that the prosecuting officers did not actively assist relator in preparing his defense.
We do not find that in this case the failure to probe for evidence helpful to a defense of insanity or the failure to gather and turn over certain other evidence which would strengthen the defense amounts to a suppression of evidence or a denial of due process.
Conclusions of Law
1. Relator has exhausted his state court remedies.
2. The court has jurisdiction of the matter.
3. The prosecuting officers of the Commonwealth of Pennsylvania did not willfully and deliberately withhold or suppress evidence beneficial to relator.
4. The relator was accorded a fair trial in conformity with the concepts of due process.
5. The petition for a writ of habeas corpus is without merit and will be denied.