The opinion of the court was delivered by: GRIM
In this habeas corpus petition, a state prisoner contends that he was denied the right to assistance of counsel at his trial in 1950. Relator has exhausted his state remedies: Commonwealth ex rel. O'Neill v. Banmiller, 27 Pa.Dist. & Co.R.2d 757 (1962), aff'd, 198 Pa.Super. 611, 184 A.2d 296 (1962), allocatur denied by Pa.Supreme Court on November 23, 1962 at No. 131 Allocatur Docket, No. 4.
This court appointed counsel to represent relator and ordered that a hearing be held to determine the relevant facts. Relator testified at this hearing and the original bills of indictment and notes of testimony of the 1950 trial were made a part of the record in this proceeding.
On June 19, 1950, O'Neill at his arraignment in Philadelphia before Judge Vincent A. Carroll pleaded not guilty to the bills of indictment dated May 31, 1950, charging him with robbery, larceny of automobile, receiving stolen goods, carrying a concealed deadly weapon, violation of the Uniform Firearms Act and assault with intent to kill. At this arraignment, O'Neill told Judge Carroll that he did not have a lawyer, but wanted to obtain the services of one. Judge Carroll thereupon continued the hearing for one week in order to enable O'Neill to get a lawyer. During this week, O'Neill wrote four letters to his family and friends seeking money in order to get a lawyer. On June 26, 1950, O'Neill again appeared before Judge Carroll who, upon being informed that O'Neill had been unable to obtain the services of an attorney by his own efforts, appointed, and O'Neill accepted, a Mr. Alessandroni of the Defender Association's office to represent the defendant. After a short conference with O'Neill, who expressed the conviction that he was innocent and had an alibi defense, Mr. Alessandroni requested and Judge Carroll granted, a thirty day continuance of the trial. Some two or three weeks later Alessandroni met with O'Neill who was incarcerated awaiting trial. According to the testimony of O'Neill, Alessandroni suggested at this meeting that O'Neill plead guilty to the charges against him, which O'Neill was unwilling to do.
On September 18, 1950, the case was called for trial before Judge Raymond MacNeille at which time the following colloquy took place:
'THE COURT: * * * Have you tried to engage a lawyer?
'THE DEFENDANT: Yes, sir.
'THE COURT: What did you do along that line?
'THE DEFENDANT: Well, since my last appearance in court I have written letters.
'THE COURT: To whom did you write?
'THE DEFENDANT: To different friends. And I haven't gotten any reply and likewise visits since my last appearance in court. I didn't get any visits.
'THE COURT: Have you any money to pay a lawyer?
'THE DEFENDANT: I think I can get it.
'THE COURT: I didn't ask you that. Do you have any money to pay a lawyer?
'THE DEFENDANT: No, not offhand.