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October 4, 1968

UNITED STATES of America ex rel. Clarence WILLIAMS
Joseph BRIERLEY, Superintendent

The opinion of the court was delivered by: MASTERSON

 The relator, Clarence Williams, presently is serving a sentence of six to thirty years in the Pennsylvania State Correctional Institution in Philadelphia, Pennsylvania. This sentence was imposed by the Court of Quarter Sessions of Philadelphia County on May 17, 1962, after the relator, charged on seven separate Bills of Indictment with seven separate counts of burglary, larceny and receiving stolen goods, had been tried and convicted on April 17, 1962. *fn1" The relator did not take a direct appeal from his conviction. Instead, four years later, in May, 1966, under the Pennsylvania Post-Conviction Hearing Act, he filed a petition for post-conviction relief in the Court of Quarter Sessions of Philadelphia County. After conducting two separate hearings this court denied the relator's petition in an Order and Opinion filed March 20, 1967. This order was affirmed by the Superior Court of Pennsylvania on August 7, 1967, and the relator's subsequent petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on September 15, 1967. *fn2"

 On October 25, 1967, the relator filed his original petition here, pursuant to Title 28 U.S.C. ยง 2241 et seq., for a writ of habeas corpus. On November 21, 1967, the respondent was ordered to show cause within twenty days why the writ should not be granted and the District Attorney of Philadelphia was ordered to answer or otherwise plead to the relator's petition. Subsequently, Matthew Ryan, Esquire, was appointed as counsel to represent the petitioner and a date was set for an evidentiary hearing. After familiarizing himself with the case Mr. Ryan decided that representation of the petitioner would place him in a potentially embarassing position, in that certain of the petitioner's allegations challenged the effectiveness of counsel who had represented the relator at his trial. Since this attorney was a close personal friend of Ryan he requested that he be permitted to withdraw from the case. Although the petitioner assured the Court that he was satisfied with Ryan's representation, in order to avoid creating a situation potentially productive of future charges of ineffectiveness of counsel, the Court decided to accept Mr. Ryan's withdrawal and to appoint instead Sheldon S. Toll, Esquire.

 Mr. Toll proceeded diligently with his investigation of the large record in this case and in May, 1968, he moved to file an amended petition. On May 10, 1968, the motion to amend was granted, and the respondent and District Attorney of Philadelphia were ordered to make their respective responsive pleadings to the amended petition by May 25, 1968.

 Because various proceedings, including the state post-conviction hearings, arising out of the activities involved in this case, already had produced in excess of 1000 pages of testimony covering all the issues which the relator advances currently, Mr. Toll, at the petitioner's own request, decided to submit the case to this Court "on the law". Subsequently he entered into a stipulation with Gordon Gelfond, Esquire, an Assistant District Attorney of Philadelphia representing the respondent, that the notes of testimony of all relevant proceedings in the state courts would be made a part of the record of this case. They stipulated also that "* * * because no additional evidence relevant to these matters was necessary * * *" these state records would constitute the record upon which the Court would resolve any controverted factual issues.

 In view of this stipulation between counsel, and in view of the thoroughness of the state proceedings, See, Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) the hearing scheduled for Monday, June 24, 1968, was to be confined to argument of the relevant legal issues. This hearing was conducted on June 24, and, with the Court's approval, counsel agreed to permit the relator himself to testify. Counsel were permitted twenty (20) days to brief their respective contentions.

 The relator contends that his current detention is improper because it results from a trial allegedly tainted by three separate violations of the Fourteenth Amendment of the Constitution:

 (1) evidence introduced at the trial was obtained by an unconstitutional search and seizure;

 (2) an involuntary confession of the defendant was introduced at trial; and,

 (3) defendant's representation at trial by court-appointed counsel was so perfunctory as to substantially deprive him of his Sixth and Fourteenth Amendment rights to the effective assistance of counsel.

 For the reasons discussed below, the Court has concluded that relator was deprived of his right to be effectively represented by counsel and that, therefore, his writ of habeas corpus will be granted.

 On the evening of Friday, April 14, 1961, in Montgomery County, Pennsylvania, the relator was arrested with two other men, Carl Smith and David Stokes, who subsequently became his co-defendants in this case. All three men were taken to the Lower Merion Township police headquarters, in Montgomery County, and, on April 15, 1961, at a magistrate's hearing, they were charged with the commission of three separate misdemeanors, i.e. carrying deadly weapons, loitering at night-time, and violating the Uniform Firearms Act. The magistrate ordered them to be held without bail in the Montgomery County Prison until a further hearing scheduled for a week later, April 22, 1961.

 In contravention of the magistrate's order the police officers took the relator and his co-defendants back to the Lower Merion police station where they kept them until at least Tuesday, April 18, 1961. On Monday, April 17, 1961, while the relator was detained in Lower Merion, without obtaining a search warrant, Detective Leo Spaeder of the Philadelphia Police Department and Detective William A. McNabb of the Lower Merion Police Department conducted a search of the Berean Manual Training School (hereafter referred to as the Berean School), 1926 South College Avenue, Philadelphia, Pennsylvania, where the relator was employed as a custodian. At the Berean School these officers seized a number of items which allegedly were the fruit of crimes with which the relator and his co-defendants were subsequently charged. *fn3" Also, while the relator was detained at the police station, he claims that he was beaten by the investigating officers and thus coerced into signing the "confession" which ultimately was introduced at his trial. It is undisputed that this confession was signed by the relator after he had been confined in the police station without bail for at least a four day period, without the assistance of counsel, and after he had been subjected to a sporadic sequence of interrogations by the police officers.

 After his second magistrate's hearing, on April 21, 1961, the relator was transferred to the Montgomery County Prison where he remained until his trial in Montgomery County on charges not directly relevant here. This trial consumed four full trial days, from June 20th to June 23rd, 1961. The relator was convicted on 16 separate indictments and sentenced by that Court to a four to twenty year term of imprisonment. Presently the relator is attacking the convictions resulting from this trial in a totally independent post-conviction proceeding in Montgomery County.

 From the date of his Montgomery County trial until April 17, 1962, the relator was confined in the Pennsylvania State Correctional Institution in Philadelphia serving the sentence imposed upon him by the Montgomery County Court. According to the undisputed testimony of the defendant, presented at the June 24 hearing here, for the first and only time he was notified of the listing for trial of his Philadelphia charges, sometime during the evening of April 16, 1962, the night before the trial commenced. (N.T. (4), p. 47.) *fn4" Between June, 1961 and April 1962, he neither had requested to have counsel appointed to represent him at his Philadelphia trial, nor did the trial court appoint counsel. N.T. (4), pp. ...

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