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May 22, 1964

UNITED STATES of America ex rel. John L. HART
James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania

The opinion of the court was delivered by: ROSENBERG

The petitioner is now confined in the State Correctional Institution at Pittsburgh, Pennsylvania and serving a life sentence on a charge of murder.

His petition to this court is for a Writ of Habeas Corpus and appointment of counsel to represent him. Based upon the averments contained in his petition, he was allowed to proceed in forma pauperis and a rule was granted to show cause why a writ of habeas corpus should not be granted.

 This Court appointed Joseph Schuchert, Esquire, as his attorney, but subsequently H. David Rothman, Esquire, entered his appearance for the petitioner and represented him by brief and at the hearing.

 The questions here substantially are:

 1. Did the evidence at the state trial establish that the killing by the defendant occurred in the perpetration of a robbery within the meaning of the Pennsylvania Felony Murder Rule?

 2. Was the petitioner, as the defendant at his trial adequately represented by counsel?

 3. Was the admission into evidence, at the state trial, of testimony from a transcribed tape recording of a conversation between the then defendant and the Prosecuting Attorney prejudicial to the petitioner?

 These questions were presented and determined in an appeal to the Pennsylvania Supreme Court. Commonwealth v. Hart, Appellant, 403 Pa. 652, 170 A.2d 850 (1961), cert. den. 368 U.S. 881, 82 S. Ct. 130, 7 L. Ed. 2d 81. *fn1"

 A concise resume of the facts in the record, which I here adopt, is contained in the opinion of Mr. Chief Justice Bell. At page 655 of 403 Pa., page 852 of 170 A.2d, it is stated:

 'The following is a brief summary of what the jury could justifiably have found from the evidence: Defendant and Patricia K. lived together. He rented her out as a prostitute. Querey, the deceased victim, after his mother's death, came from North Carolina to Pennsylvania to collect her life insurance. He collected the insurance and on his way home engaged Patricia through a cab driver for purposes of intercourse. The price was $ 50. He paid her the $ 50 and also bought her some presents. Patricia remained some time and after it was over went back to the Naples Restaurant to meet defendant. She gave defendant $ 50. He became very angry because his price was $ 50 an hour and she had stayed three hours. Defendant shouted at her and said 'You are going out and see that man with me.' He said the man was trying to get something for nothing. Patricia was afraid to tell defendant that Querey had bought her presents because he had told her that if she ever let anybody buy her anything he would beat her -- which he had already done on a prior occasion. Defendant and Patricia, at his insistence, went to the Airport to see Querey to get the additional money to which he claimed he was entitled. They knocked on Querey's door and telephoned repeatedly but unsuccessfully. Defendant insisted they try once again and after defendant banged very loudly on Querey's door he forced Patricia to call Querey once more. Querey then opened the door slightly. Defendant pushed the door open and pushed Patricia inside. Then Querey asked: 'What's this all about?' Defendant answered 'I think you owe this girl some money.' Querey denied knowing Patricia and told defendant to get out. Patricia begged defendant to leave the room, but defendant replied he wanted that money. Querey threatened to call the police. He went to the phone and defendant followed him. They began struggling over the telephone. Patricia begged defendant to leave Querey alone. Querey started to put his leg in his trousers and at that point, defendant who was 6 feet 4 inches tall and weighed 170 pounds, started hitting Querey in the face with his fists. Patricia screamed at defendant, who repeatedly told her to be quiet and threatened to hit her too if she were not. Querey, who was about 5 feet 8 inches tall and weighed 150 pounds and was further handicapped by putting on his trousers, just stood there while defendant beat him until he fell to the floor. While he lay there defendant kicked him in the back of the head -- which was later proved to be the cause of death. Then defendant bent down, and while Querey was unconscious, took the wallet out of Querey's pocket, removed four (or more) $ 50 bills from the wallet, and threw the wallet between Querey's legs.

 'Patricia at that point ran to the elevator, followed by defendant. He told her that he had gotten over $ 300. .defendant soon became $ 300. Defendant then concocted several lies for Patricia to tell, including beaten her. Defendant soon became scared, hid, dyed his hair, and several days later fled with Patricia and another friend to New Orleans. In his confession to the district attorney (which was freely made after due admonitions and warnings) he admitted that he had gotten $ 200; that he had struck Querey and while Querey was unconscious but still living had taken his money.'

 As to the first contention, the defense at the state trial was that the robbery by the defendant was a post induced act following the beating; that the defendant went to the victim's room not for the purpose of robbery, but only for the purpose of demanding of the victim an apology to the girl for whom the defendant had assumed an altruistic guardianship, that the beating occurred unintentionally when the victim went to the telephone to call for help; and that, only after the victim was unconscious on floor, had the thought suddenly occurred and been acted upon to rob.

 The Commonwealth of Pennsylvania within its sovereign power has defined the crimes of murder and robbery as felonies. It has also provided for punishment on conviction of either of these crimes. *fn2" The Supreme Court of Pennsylvania has passed on the question here raised and similar questions on numerous occasions. In Commonwealth v. Stelma, 327 Pa. 317, at page 321, 192 A. 906, at page 908 (1937), faced with a case similar to this one stated:

 'The defendant's argument that the intention to rob originated subsequent to the assault upon the deceased need not be seriously considered in view of the verdict of the jury. Moreover, even though such were the case, it is immaterial when the design to rob was conceived, if the homicide occurred while defendant was perpetrating or attempting to perpetrate a robbery. Where the killing occurs in the perpetration of any of the crimes specifically named in the statute referred to, the intent to kill is immaterial.'

 Preservation of the public peace and good order is a sovereign power in a state. Amer.Juris., Const. Law, Section 245 et sequi. No federal question exists where judicial determination is made by a state within its sovereign jurisdiction and not in violation of the Federal Constitution. Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 33 S. Ct. 312, 57 L. Ed. 510 (1913). Although it cannot be used to justify a violation of constitutional rights. Duckworth v. James, 4 C.A., 1959, 267 F.2d 224. In the instant case the evidence is overwhelmingly convincing that the defendant went to the victim's room for the purpose of getting money from the victim. The appellant's contention raises only a question of fact which was properly determined at the trial of the case. No lack of due process appears in this connection. Commonwealth v. Hart, supra.

 As to the second contention, did the defendant at the trial have adequate representation of counsel? The petitioner complains that the court-appointed counsel failed to consult with him, failed to obtain a material witness which the petitioner had requested him to do, and failed to prepare the petitioner's defenses.

 The record discloses that the defendant before the trial and made requests for several named attorneys who refused or failed to represent him for one reason or another. Finally he asked for, and the judge allowed him the services of Attorney Armin H. Friedman.

 Approximately a month later, the case was called for trial. On the morning of that day, it was reported to the assignment room judge that the defendant had become dissatisfied with his attorney and desired another one (H. David Rothman) then present in court. At page 4 of the transcript of the testimony this appears of record:

 'The Court: Mr. Hart do you agree that you did ask for the appointment of Mr. Friedman?

 'The defendant: Yes, I did.

 'The Court: You asked Judge Brown to appoint Mr. Friedman?

 'The defendant: Yes, I did, but since I realize he didn't have my interest at heart, Mr. Friedman wanted me to plead guilty to second degree murder. I don't believe I am guilty, and he has made no preparation for the case.

 'The Court: Mr. Hart how did you happen to select Mr. Friedman?

 'The Court: You had heard about him.

 'The defendant: Yes, I did.

 'The Court: He didn't seek your employment?

 'The defendant: No he didn't. And in view of the fact that Mr. Friedman and I are arguing, I didn't think he woud have my interest at heart for certain now.'

 The record shows that there had been no understanding between Mr. Friedman and the District Attorney's office. It shows that Mr. Friedman had seen his client regularly, in fact, as he stated 'every single day'. The record also contains the comment by the court 'It is an attorney's duty if he sees a thing a certain way to present his point of view to you, and if you reject it, he will proceed with all the diligence and competence at his command. Usually to do his best regardless of that fact * * *'.

 The judge then questioned the defendant further at page 10 of the transcript of testimony:

 'The Court: Mr. Hart how did you happen to wire to Mr. Rothman?

 'The defendant: Well, I heard through friends and relatives that Mr. Rothman was a competent ...

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