nor did he file a motion for a bill of particulars.
After trial, it is alleged that counsel failed to appear to argue post-trial motions and to make a plea for leniency on relator's behalf at sentencing. Counsel failed to make any statement regarding the use by the Court of relator's juvenile record in imposing sentence. It is conceded by counsel for the relator that a trial court may rely upon the juvenile record when imposing sentence. United States ex rel. Jackson v. Myers, 374 F.2d 707 (3 Cir. 1967).
At the imposition of sentence, a different attorney represented the relator than his trial counsel and he too was a late appointment. The record of the sentencing fails to disclose that he made any argument on the relator's behalf.
At the hearing before this Court, counsel for the relator at sentencing, had no specific recollection of the sentencing. However, counsel testified that in each case he made an argument in mitigation of sentence at side-bar. "I have no doubt in my mind that it was so at a side bar conference with Judge O'Donnell." (Fed. hab. n.t. 101).
Trial counsel for the relator testified that he did not move to suppress because he thought it would not be successful in view of the fact that the police had observed relator inside the booth.
Counsel's failure to file a motion for a bill of particulars under the facts of this case does not indicate ineffective representation. While the notes from the magistrate's hearing and the repair records might have been helpful, we cannot say that it was basic prejudicial error not to have these items to impeach the testimony of the witness Adams. The fact that the light was broken or merely switched off was not material in view of the personal observation by the police officers of the relator inside the booth when the light was on.
In any event, relator's counsel managed to elicit testimony from the police that they did not observe any broken glass in the telephone booth, and that there was a light visible in the booth (trial n.t. 12, 38).
No character witnesses were called by the public defender because the relator affirmatively requested that none be called. (Fed. hab. n.t. 105). Relator was in a better position than counsel to know if character witnesses would be helpful and counsel cannot be faulted in this regard.
Trial counsel waived a jury trial because in his judgment, "* * * It is very likely that if I had at this late date demanded a jury trial that I would have gotten a trial by jury right then and there and probably with disastrous results." * * * "If I had tried the case before a jury my estimate now is the same as it would have been at that time, I am quite sure I would have lost the case with the charge and that the defendant would have received a much more severe sentence than he did." (Fed. hab. n.t. 87-88)
Trial counsel further testified that he had vigorously argued the motions for new trial and arrest of judgment and sought to convince the trial judge that a telephone booth was not a building within the meaning of the burglary statute. On two occasions, on August 19th and August 27th, 1963, he addressed the court with regard to the sentence to be imposed which arguments were not transcribed. He tried to cajole the court into taking a lighter view of the matter and only find the relator guilty of tampering with a telephone which carried a twelve month term and a $500 fine.
After carefully weighing all of the alleged errors and after consideration of the entire record and briefs of counsel, we find that relator was not prejudiced by the late appointment of counsel at trial or at sentencing. It is our considered judgment that the Commonwealth has rebutted the presumption of harm and that the relator was effectively represented by appointed counsel. We cannot say that the trial of this case was a "mockery of justice" requiring the granting of the Great Writ.
We extend our gratitude to John H. Lewis, Esq., for his unselfish and excellent advocacy on behalf of the relator.
Now, this 31st day of March, 1969, it is ordered that the petition of Edward McCoy for a writ of habeas corpus is denied.
There is probable cause for an appeal.