counsel abandoned any further attempt to contact the persons whose names relator had given him since they would not be able to support the relator's alibi but would contradict it.
We fail to see how in these circumstances counsel's conduct deprived relator of "effective assistance of counsel." Here it is not as if counsel failed to present a significant defense for the relator,
but instead presented the only available defense he had. Any weakness in it was not the fault of counsel's but entirely brought about through either relator's mistake or his untruthfulness. Whatever the reason we do not find that relator was denied effective assistance of counsel.
Relator also alleges other grounds which he claims establish that he had "ineffective assistance of counsel." After consideration of these claims we find them to be without merit.
3. CONSOLIDATION OF INDICTMENTS FOR TRIAL
Relator's final allegation presents a somewhat novel question for a habeas corpus proceeding. He claims that the consolidation
of the charges arising from the March 12 and March 31 crimes into one trial, under the circumstances of this case, so prejudiced him as to deprive him of his right to a fair trial.
Generally, the consolidation for trial of two or more indictments is within the discretion of the trial judge, reviewable on direct appeal if the defendant has been prejudiced. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622 (1939). Furthermore, "* * * the commission or occurrence of such errors or irregularities merely involve issues relating to state law and procedure rather than to federal constitutional issues and are justiciable only on direct appeal rather than on federal habeas corpus proceedings. The proposition has long been established that habeas corpus cannot be utilized as a substitute for appeal or as a writ of error to review such errors or irregularities. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L. Ed. 969 (1915). It is only under circumstances impugning fundamental fairness or infringing upon specific constitutional protections that federal issues are presented. * * *" Application of Stecker, 271 F. Supp. 406, 409 (N.J.1966), aff'd, 381 F.2d 379 (C.A. 3, 1967), cert. denied, 389 U.S. 929, 88 S. Ct. 290, 19 L. Ed. 2d 280 (U.S. Nov. 7, 1967). We have been unable to discover any case which has considered whether or under what circumstances consolidation violates constitutional guarantees. It is true that in Drew, supra, the Court on direct appeal held that consolidation constituted reversible prejudicial error, but the Drew court did not, nor did it need to reach any constitutional question.
The absence of precedents, of course, neither bars consideration of relator's claim nor determines its outcome. However, in view of the somewhat murky status of the State procedure, we think that the considerations that follow dictate that we should withhold our hand.
Relator, as previously stated, had been denied his right to file a timely appeal from his State court conviction. It is the law in Pennsylvania that improper consolidation is reviewable on direct appeal and not in a collateral proceeding. Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950). Thus, relator, under State law, would normally have lost his right to raise the question. However, in his State habeas proceeding, the court devoted a brief portion of its opinion to this issue and held that consolidation was proper. On review the Superior Court affirmed without an opinion. Commonwealth ex rel. Jones v. Rundle, 206 Pa.Super. 734, 213 A.2d 384 (1965). We cannot know whether the action of the Superior Court was because it agreed with the lower court that consolidation was proper or because this was not a proper question to be raised in a collateral proceeding.
Relator will be given the right to perfect a direct appeal. On that appeal, the consolidation question can be considered, as a matter of State law. This is not a question of exhaustion under 28 U.S.C. Sec. 2254, for the State has already had the opportunity to pass on the constitutional question. Rather, it is a recognition of the principle that a federal court should not decide a constitutional question, hitherto undetermined, when the disposition of the case may be accomplished by the State on a purely State ground.
We wish to express our gratitude to John J. Cannon, Esquire, a member of the Philadelphia Bar Association, who volunteered his services and who was both dedicated and able in his representation of the relator in the present proceeding.
For the foregoing reasons, we enter the following
And now, this 17th day of November 1967, it is ordered that the writ of habeas corpus is granted unless the Commonwealth of Pennsylvania shall grant relator leave to perfect a direct appeal within thirty (30) days from his convictions in the Court of Quarter Sessions of Delaware County, Bills Nos. 549, 550, 551, 552, 553, 557, 559 and 560, December Sessions, 1963.