or the assault sentence, and this Court will not relegate petitioner to the futile course of going through the state courts when denial of relief is a foregone conclusion under the present state of the law in the Commonwealth of Pennsylvania.
III. VALIDITY OF THE PLEAS
In 1952, petitioner was arrested at his home in Pittsburgh, Pennsylvania, on a charge of burglary and committed to Beaver County Jail. A pretrial petition for writ of habeas corpus was filed in his behalf in the Court of Common Pleas of Beaver County. Petitioner's family retained Attorney Charles Caputo of the Allegheny County Bar who, in turn, associated with him Attorney A.G. Helbling of the Beaver County Bar. Petitioner's pretrial petition for writ of habeas corpus was, after hearing, denied. Soon thereafter, on May 8, 1952, petitioner escaped from the Beaver County Jail. He was soon recaptured and returned to custody. There was widespread publicity in Beaver County in reference to petitioner's jail break.
Early in June, 1952, petitioner was notified that he and his co-defendant, Theodore Melensky, were to be tried on June 10, 1952. An informal request for a severance of the trials of petitioner and Melensky was made to the District Attorney, but apparently consent to such a severance was not given and a formal motion to the Court was not made. Attorney Helbling knew that Attorney Caputo would not be available for trial at the June Term, but he did not notify Attorney Caputo of the date of trial nor did he request a postponement, and he continued to represent both petitioner and Melensky.
By reason of the widespread public prejudice against this petitioner resulting from his jail escape, it became apparent to Attorney Helbling that of his two clients, the only one for whom he might possibly secure an acquittal was Melensky. A severance not having been consented to, it became apparent to Attorney Helbling, as it would to any practical, realistic attorney, that if a joint trial were held, the result would probably be convictions of both defendants. Faced with this situation, Attorney Helbling suggested to petitioner the advisability of entering a plea of guilty, and petitioner did so plead.
Pleas were also entered to a number of charges arising out of the prison break, including a charge of assault with intent to kill, the only one of said charges for which sentence was imposed. An information charging prison breach was used as a basis not only for an indictment for said offense, but also for an indictment charging robbery, assault with intent to kill, aggravated assault and battery, assault and battery and conspiring to do an unlawful act.
Two constitutional issues are presented by the record in this proceeding:
1. Were the guilty pleas of Michelotti knowingly and voluntarily entered? The answer is 'no.'
2. Did the representation by an attorney representing two co-defendants, in the circumstances of this case, present such a conflict of interest as to constitute a lack of counsel violative of the federal concept of 'due process?' The answer is 'yes.' $ 4, 5$ Without implying any criticism of counsel in the case, which counsel the Court is certain represented both Petitioner and Melensky as well as any one attorney could have under the circumstances, nevertheless, the effect of the widespread publicity about the prison break was to create such a conflict of interest between the co-defendants that no one attorney could constitutionally remain as attorney for both defendants. Attorney Helbling having remained as counsel for both defendants, the entire proceeding as to petitioner is vitiated and the conviction must be set aside, even though it is possible that an attorney without such a conflict might well have also suggested that, under these circumstances, pleas of guilty be entered.
That no conflict of interest may have existed as to the plea to assault with intent to kill is irrelevant since the entire sentencing procedure was tainted by the burglary plea aspect of the proceeding. Furthermore, the record of the sentence indicates that counsel advised his client to plead guilty to offenses of which counsel indicated he believed petitioner to be innocent. No inquiry was made of petitioner as to whether the plea was being entered voluntarily and with full understanding of the consequences.
Under these circumstances, the plea to assault cannot stand, especially since the absence of an information for assault might well, under Pennsylvania law, have subjected the indictment for this charge to quashing, thereby, through delay, removing the public concern aspect of the case.
Accordingly, the statutory requisites of 28 U.S.C.A. § 2254 having been met and the pleas of guilty being constitutionally invalid, the Petition for Writ of Habeas Corpus will be granted.
This Opinion is adopted as Findings of Fact and Conclusions of Law.
An appropriate Order is entered.