advanced here requires an identical conclusion. (FHH, N.T., 27.) At this hearing the relator was not represented by his trial counsel. The relator was charged by informations presented at the hearing with the crimes of prison breach and holding a hostage and he entered oral pleas of guilty to those offenses.
On the next day, Tuesday, September 20th, the relator was sentenced on both charges contained in Bills of Indictment Nos. 757 and 757A. After the sentencing was completed he was arraigned on Bills of Indictment Nos. 893 and 894 which charged him with the crimes of prison breach and holding a hostage. Counsel announced to the Court the relator's intention to plead guilty to these offenses, as they had been recited by the District Attorney, and the Court, without interrogating the relator at all about his understanding of the offenses charged or about his understanding of the consequences of pleading guilty, accepted the pleas, and continued the Sentencing Hearing until Monday, September 26th. (A, N.T., 1-2.)
The record does not indicate clearly how often or how extensively the relator and counsel conferred between September 20th and September 26th. It does appear, however, that they did meet, at least once, on the 23rd, when counsel explained to relator, possibly for the first time, the penalties which could be imposed upon him under the Hostage Act. (SHH, N.T., 109.)
At the Sentencing Hearing on Monday, September 26th, the Commonwealth produced one witness, Detective William J. Keuch, for purposes of re-constructing the circumstances of the two crimes. Keuch testified in essence to the facts summarized supra, pp. 2-3. Over objections by relator's counsel, relator's partially signed inculpatory statement of September 13th was introduced into evidence for the limited purpose of corroborating Keuch's testimony. (During the hearing relator's wooden replica of a pistol also was marked and identified as an exhibit.) During Keuch's testimony, Warden Downey and Guards Humetsky and Sullivan were present in the courtroom, and, although they were not sworn, the Court, without objection by relator's counsel, permitted these witnesses to indicate their agreement with Keuch's resume of the facts.
On the relator's behalf counsel simply had the relator himself testify to two aspects of the crime which allegedly supported the contention that the relator had not used any violence during the attempted escape. Counsel made no plea on his client's behalf in an attempt to mitigate sentence. As noted supra, p. 1, the Court imposed prison terms of two and one-half to five years, and ten to twenty years, on Bills of Indictment Nos. 893 and 894 respectively. The relator did not appeal this conviction although later he filed the state petition for writ of habeas corpus which ultimately was denied by a court at every level of Pennsylvania's judicial hierarchy.
In his petition here for writ of habeas corpus the relator advances four separate contentions which allegedly support a conclusion that he currently is incarcerated in violation of the Federal Constitution: (1) that his pleas of guilty were neither voluntarily nor understandingly made; (2) that he was deprived the effective assistance of counsel because he was not represented by counsel at the Alderman's Hearing; (3) that, in general, his privately-retained counsel represented him in such an unreasonable fashion as to deprive him of his right to the effective assistance of counsel; and, (4) that the indictments on which his conviction was based were illegal.
Relator did not advance his third and fourth contentions to the state courts and, particularly since the Commonwealth has not indicated an intention here to waive the exhaustion requirement, it therefore would be inappropriate for this Court to consider either of these contentions at this time. See generally, United States ex rel. Boyance v. Myers, 372 F.2d 111, 112-113 (C.A. 3, 1967). This Court also can not agree with the relator's second contention challenging the Commonwealth's failure to provide him with counsel at the Alderman's Hearing since, absent extraordinary circumstances not present here, a preliminary hearing is not a critical stage of a criminal proceeding in Pennsylvania. See, e.g., United States ex rel. Peterson v. Russell, 266 F. Supp. 93, 94 (W.D.Pa., 1967), United States ex rel. Maisenhelder v. Rundle, 229 F. Supp. 506, 508-509 (E.D.Pa., 1964), aff'd 349 F.2d 592, and Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965).
Relator adequately has exhausted all state remedies available for considering his first contention relating to the voluntariness of his guilty pleas, however, and this legal contention, if supported by substantial factual evidence, is, of course, one which can justify a conclusion that he was, and is, detained unconstitutionally. See, e.g., United States ex rel. Thurmond v. Mancusi, 275 F. Supp. 508, 514-519 (E.D.N.Y., 1967). After examination of the entire factual record in relator's case, this Court is convinced that the relator neither knowingly nor voluntarily entered his pleas of guilty to the charges of prison breach and holding a hostage, and, that, accordingly, the relator is entitled to a new trial on those charges.
In the absence of any interrogation by the trial court of the relator's understanding of his guilty pleas, the burden of demonstrating the validity of those pleas rests upon the Commonwealth. See, United States ex rel. Crosby v. Brierley, 404 F.2d 790, 795 (C.A. 3, 1968), and United States ex rel. McCloud v. Rundle, 402 F.2d 853, 857 (C.A. 3, 1968). In sustaining its burden the Commonwealth must show that the "totality of circumstances" present at the time when the relator entered his pleas were such as would indicate that he voluntarily and understandingly pleaded guilty. Among the circumstances to be considered are the following: the relator's age and background; the consistency, or lack of consistency, in the pleas made by the relator throughout the pretrial and trial stages of the case; the extent, if any, to which the trial court conducted an inquiry into the relator's understanding of his plea; the trial counsel's familiarity with the law; and, the relator's opportunity to consult with trial counsel. See, Crosby, supra, 404 F.2d at 802.
The testimony of relator's trial counsel at the State Habeas Hearing graphically described relator's disturbed state of mind at the critical time when he made his guilty pleas:
"* * * this boy was nervous, very nervous, very ill at ease, very much emotionally disturbed, and he was frightened. He kept repeating to me that they would throw the book at him, that he was told they would put him away for the rest of his life if he didn't plead guilty and that, therefore, he would like to plead guilty",