was done. Every witness relator requested appeared and testified or was available to testify.
From the rambling petition, 30 pages long, the grounds upon which relator relies for relief appear to be as follows:
1. Numerous trial errors.
2. Relator was denied due process of law because he was denied counsel of his own choosing and denied the effective representation of counsel.
3. Relator was denied due process of law because the 'pork pie' hat and the copper-coated bullets admitted in evidence were the fruit of an illegal search and seizure.
In our opinion the petition for the writ should be denied.
As to ground 1, a writ of habeas corpus cannot be a substitute for appeal. 'This rule must be strictly observed if orderly appellate procedure is to be maintained.' Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S. Ct. 236, 239, 87 L. Ed. 268 (1942); United States v. Anselmi, 207 F.2d 312, 314 (3d Cir., 1953); United States v. Gallagher, 183 F.2d 342, 344 (3d Cir., 1950); United States ex rel. Schuck v. Maroney, 192 F.Supp. 335 (W.D.Pa.1961).
Presumptively relator assigned the alleged trial errors in his appeal to the Superior Court of Pennsylvania. Those he did not assign cannot be reviewed here. None of them appear to involve errors which denied or infringed relator's constitutional right to a fair trial. From our review of the trial record, he was not in any manner deprived of due process of law in violation of the Fourteenth Amendment. We find as a fact that the trial was not a farce or sham.
As to ground 2, we find the facts to be as follows: Relator was in the County Jail in Pittsburgh approximately 70 days prior to his trial. During that period he had every opportunity to engage private counsel of his choice. His efforts to do so were frustrated by the lack of funds. He testified at the hearing in this court that his parents had raised $ 300.00 for his defense; however, his parents were not called to corroborate his testimony.
Attorney Carl Blanchfield, who was appointed by the State Court to defend relator on November 10, 1960, is a competent lawyer of long experience in the criminal courts of Allegheny County. This attorney from the time of his appointment and throughout the trial was ready and willing to defend relator as trial counsel and to advise him in all respects. He secured two continuances of the trial, i.e., on November 22, 1960 and January 4, 1961, in order to afford relator more time to obtain private counsel. He brought one attorney to the jail to interview relator; he spoke to another in his behalf. Because of his lack of money, or sufficient money, relator was unable to retain private counsel.
Attorney Blanchfield consulted with relator five or six times and corresponded with him. He conducted a personal investigation of the case. Relator did not disclose any alibi witnesses to the appointed attorney, nor did he disclose any, except his mother, to the trial judge. He did not mention any alibi witnesses to this court. The appointed attorney had prepared the case for trial and had knowledge of sufficient facts to properly represent relator.
On or about November 10th, relator rejected the proffered services of the Legal Aid Society. Not until the day of the trial did he ever disclose to the State Court that he would not accept the services of Blanchfield.
His refusal of counsel was intentional and reflected his own desire and volition.
We find as a fact that relator had sufficient time to obtain counsel of his choice; that the State Court did not abuse its discretion in refusing a third continuance of the trial on January 10, 1961, Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377 (1940); United States ex rel. Cobb v. Cavell, 161 F.Supp. 174 (W.D.Pa.1958), aff'd 3 Cir., 258 F.2d 946; Baldwin v. United States, 260 F.2d 117 (4th Cir., 1958); that relator did not make a specific or timely motion to dismiss appointed counsel; and that he had ample opportunity to meet the case of the Commonwealth. If relator feels he did not have the benefit of counsel, he has only himself to blame. He waived his right to counsel intelligently, competently, with full understanding, and with his eyes open. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Adams v. United States ex rel. McCann, supra 317 U.S. p. 279, 63 S. Ct. pp. 241-242, 87 L. Ed. 268.
Moreover, the State Court, despite relator's statement that he did not want appointed counsel, insisted that Attorney Blanchfield remain with him and give aid and advice throughout the trial. The appointed counsel did so, and when requested by relator or the trial judge rendered the services detailed above.
An accused has an unquestioned right to defend himself. 28 U.S.C. § 1954. When it appears, as it did to the State Court, that relator knew what he was doing, it would have been error to force counsel not of his choice upon him. Adams v. United States ex rel. McCann, supra, 317 U.S. p. 279, 63 S. Ct. pp. 241-242, 87 L. Ed. 268; Reynolds v. United States, 267 F.2d 235 (9th Cir., 1959).
The State Court went much further than required when it ordered appointed counsel to stand by and aid relator during the trial.
We find as a fact that appointed counsel would have conducted the trial if relator had permitted him to do so. He cannot now complain of inadequate preparation or inadequate representation. If there was any insufficiency, the fault appears to be that of the relator.
Relator complains that he was denied counsel of his choice. An accused without funds of sufficient funds who failed to engage counsel of choice within a 70-day period prior to trial must rely on court-appointed counsel if he desires an advocate. He does not have the right to tell the court whom to appoint, -- the choice is that of the court. Wilson v. United States, 215 F.Supp. 661 (W.D.Va.1963); United States ex rel. Mitchell v. Thompson, 56 F.Supp. 683 (S.D.N.Y.1944).
We conclude that relator was given a reasonable time and a fair opportunity to secure counsel of his own choice, Chandler v. Fretag, 348 U.S. 3, 10, 75 S. Ct. 1, 99 L. Ed. 4 (1954); that this right cannot be insisted upon in a manner that will obstruct a reasonably prompt trial, Releford v. United States, 288 F.2d 298, 301 (9th Cir., 1961); Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219, 221 (1956); and that he was not deprived of his constitutional right to have assistance of counsel at his trial.
As to ground 3, we do not find an illegal search and seizure in violation of the Fourth Amendment. The officers, without a search warrant, conducted the search of relator's parents' home on February 2, 1960, the day after the robbery, and seized the 'pork pie' hat and the copper-coated bullets which were offered in evidence at the trial. Relator did not claim that the hat and the bullets belonged to him; he asserted at the hearing in this court that the hat belonged to his brother, Joseph, who was not called as a witness at the trial or at the hearing, and that the bullets belonged to a game warden, who testified at the trial.
Relator was not living at the home of his parents at the time of the search; he had terminated his temporary visit on February 1st, the day of the robbery; he then had no possessory interest in the premises either as a guest or invitee. When he left on February 1st for Richmond, Virginia, to work for his uncle and get married, he intended to permanently abandon his parents' home and any of his possessions remaining therein. Cf. United States v. Minker, 312 F.2d 632 (3d Cir., 1962).
Moreover, his parents, the owners of the dwelling, without any hint of coercion, consented to the search. This evidence was brought out at the trial by relator's mother who he called as a witness. No contrary evidence was presented at the hearing in this court; relator's father and mother were not even asked by him to appear in his behalf.
The immunity from unreasonable searches and seizures being personal, an accused cannot object to the searching of another's premises, particularly that of his parents, if the latter consent to the search. Von Eichelberger v. United States, 252 F.2d 187 (9th Cir., 1958); United States v. Walker, 190 F.2d 481 (2d Cir., 1951); Calhoun v. United States, 172 F.2d 457 (5th Cir., 1949), cert. denied 337 U.S. 938, 69 S. Ct. 1513, 93 L. Ed. 1743 (1949); Cutting v. United States, 169 F.2d 951 (9th Cir., 1948); United States v. El Rancho Adolphus Products, 140 F.Supp. 645, 651 (M.D.Pa.1956), aff'd United States v. Hokensee, 243 F.2d 367 (3d Cir., 1957), cert. denied 353 U.S. 976, 77 S. Ct. 1058, 1 L. Ed. 2d 1136 (1957); 31 A.L.R.2d 1078 at p. 1081. Cf. Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960).
We conclude that the search of relator's parents' home with their uncoerced consent and the seizure of the hat and bullets were reasonable. Likewise, we conclude that the F.B.I. agent had a right pursuant to lawful arrest to search relator and seize the gun from his person. The admission into evidence of these articles at the trial did not violate relator's constitutional rights under the Fourteenth Amendment.
An appropriate order will be entered.