and this is unfortunate. This occurs especially in cases of crimes which are not considered serious, for example, summary offenses. A plea could be given in ignorance or in fear or on promises of leniency. However, once it is withdrawn it has ceased to exist, since a judge in the wise exercise of his discretion has seen fit to consider it a nullity. The internal inconsistency within a court which on the one hand permits a guilty plea to be withdrawn, and on the other permits it to be used as evidence, entraps an unwary defendant and cannot be tolerated.
A conviction which has no evidentiary basis has long been recognized as subject to collateral attack in the federal courts. To convict a man without evidence violates the fundamental fairness required by the Fourteenth Amendment, Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1959); Tot v. United States, 319 U.S. 463, 473, 63 S. Ct. 1241, 87 L. Ed. 1519 (concurring opinion 1943). The circumstances of this case show clearly that relator was not the actual perpetrator of the robbery. The witness testified that only one man, not relator, robbed her. Relator's guilt of this crime therefore can only be as a principal in the second degree, that is, one who aids and abets the actual robber but who was not present when the crime was committed. Commonwealth v. Claek, 29 D. & C.2d 379 (1962), affirmed per curiam, 200 Pa.Super. 361, 189 A.2d 321 (1962). There is no evidence which connects relator to this crime or which shows that he was aware that it was to be committed. No guilty mind has been shown by direct or circumstantial evidence. For the foregoing reasons, relator's conviction was not attended by the fundamental fairness required by the Constitution. It cannot stand and the writ must issue.
BOTH BILLS OF INDICTMENT (1549 AND 1555)
Relator has also challenged the quality of assistance of counsel he received in both trials. He does not allege incompetency of either attorney but claims that they were appointed too close to the time of trial to become properly familiar with his case. The time of appointment of counsel, in itself, does not establish ineffective assistance. United States ex rel. Kelley v. Rundle, 242 F. Supp. 708 (E.D.Pa.1965). At the trial on Bill 1549, relator's attorney requested a continuance, which was denied. Relator contends that he was thereby prejudiced since his attorney was not aware of certain alibi witnesses which he wanted to call on his behalf. However, the time element was not prejudicial since after the close of the trial, the plea of guilty, and the withdrawal of the plea, relator was given time to produce these witnesses. Any prejudice resulting from the short time between counsel's appointment and the trial was mitigated when additional time to get witnesses was allowed. In Bill 1555, counsel was appointed immediately before trial, i.e., within minutes. But the nature of the trial was such that more time would not appear to be essential. It has not been demonstrated that relator's attorney could have done anything more were he allowed more time for preparation. He in fact successfully demurred to two bills of indictment for which relator was tried. Relator never has suggested that he wanted to produce witnesses at this trial. In short, we see no prejudice. Other contentions raised by relator do not lead us to believe that relator's representation was less than that required by the Constitution. The test of constitutional deprivation arising from inadequate assistance of counsel is "representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and correct it." In re Ernst's Petition, 294 F.2d 556, 558 (3rd Cir. 1961); United States ex rel. O'Halloran v. Myers, 244 F. Supp. 169 (E.D.Pa.1965). No such deprivation occurred.
Other contentions raised by relator are not considered since we find that state remedies have not been exhausted, except as to the issues which we have discussed.
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