JOHN MORGAN DAVIS, District Judge.
Before the Court is a petition for a Writ of Habeas Corpus. On April 15, 1963, the relator received a sentence of 6 to 12 years imprisonment, after a trial by jury, for the crimes of statutory rape and sodomy. In September 1966, he filed a Post Conviction Petition; however, a stipulation of counsel was approved by the trial Court wherein he was given leave to file post trial motions nunc pro tunc. The motions were denied in December 1967. On appeal, the judgment of sentence was affirmed, per curiam. Commonwealth v. Conyers, 213 Pa.Super. 708, 244 A.2d 168 (1968). State remedies have been exhausted.
It is apparent that the sole issue being asserted here - ineffective assistance of counsel - was raised in this precise form for the first time on appeal to the Superior Court. To assure that the relator and the Commonwealth would have full opportunity to develop their respective positions, a hearing was conducted in this Court, on May 15, 1969. At this hearing, the Commonwealth surprisingly waived participation and elected to rely upon their memorandum of law. Recognizing that under the recent decision of U.S. ex rel. Mathis v. Rundle, 394 F.2d 748 (3rd Cir., 1968) the burden of proof in belated appointment of counsel cases falls upon the state, I granted the Commonwealth one week to either place an order for the habeas notes of testimony, and submit a response memorandum, or to request a rehearing. On May 28, 1969, the District Attorney of Northampton County, indicated that his office would not pursue the matter further.
Preliminarily, we conclude that the relator has sustained his burden of demonstrating that defense counsel were appointed on the eve of trial. At the habeas hearing, relator's principal defense counsel testified that he was appointed on the morning of trial. He first spoke to his client for about one hour, where the principal topic of conversation was the composition of the jury array, since the relator was concerned that an all white jury would substantially impair his chances for an impartial trial. In any event, the principal defense counsel admitted that when he was appointed that morning, he was given only the bill of indictment and the notes of testimony of the preliminary hearing in magistrate's court.
In a similar manner, relator's junior co-counsel testified that he was appointed, "after lunch, - 1:30 or 2:00 P.M." on the day of trial. That first afternoon the jury was selected, and opening speeches may have been made, (although counsel were not sure on this point). In Mathis, supra, at p. 753, this Circuit set forth the rule that:
Should the trial court fail to appoint counsel sufficiently in advance of trial to prepare defendant's case in a reasonably thorough manner, and should defendant on collateral attack establish a prima facie case that the hasty appointment of legal assistance may have been inherently prejudical to his trial by precluding him from the advantage of an adequently prepared defense, then * * * the state should bear the brunt of rebutting the presumption of injury * * *.
There is no doubt that counsel did not have time to prepare the case "in a reasonably thorough manner." By their own assertion, counsel had no time to prepare the case before selecting the jury and possibly, before the opening speeches.
Further inquiry of this Court is required as to whether the hasty appointment was inherently prejudicial. In resolving this question, a brief recitation of the facts is required.
At the time of the incidents for which the relator was convicted, the prosecutrix was age 14; consequently, he was indicted for statutory rather than common law rape, 18 P.S.Pa. § 4721, as well as for sodomy. The evidence adduced at trial was principally elicited from the prosecutrix and her mother. On February 2, 1963, they visited the relator's apartment, ostensibly to pick up a hi-fi set, which the relator had promised to give them. After instructing the mother to wait in his apartment, the relator allegedly took the prosecutrix to someone else's home, for the purpose of obtaining the hi-fi set. They were unsuccessful, however, and according to the prosecutrix they returned to the relator's apartment. Rather than enter the apartment through the door, the relator ordered the prosecutrix to enter through a window into the bedroom where he allegedly committed the act of sodomy. The two then went downstairs where the mother was waiting. Without informing her of what had just transpired, the prosecutrix and her mother departed for their home.
The essence of the relator's position is that the late appointment of counsel prevented him from adequately preparing a defense. Specifically, he contends that appointed counsel failed to obtain the presence of an alibi witness, one Johnny Blackwell, the relator's roommate, who was allegedly present in the apartment during the evening in question, and would have substantiated the relator's position. On cross-examination, the relator so testified (N.T. p. 134). However, no effort was made by counsel to obtain this alibi witness before trial, or even to move for a continuance or recess during trial after the relator had testified on cross examination of the witnesses' existence.
This same witness was present, according to the relator, on the day of the alleged rape. However, one additional witness was also present (again according to the relator) - one Amos Grattison (N.T. p. 129). No effort was made to obtain the presence of this witness either.
We are not persuaded that the prospective witnesses named above would have necessarily provided the relator with an "alibi" sufficiently impregnable to warrant acquittal. However, under the rule of Mathis, once the relator establishes that counsel were appointed on the eve of trial, which precluded him from the advantage of an adequately prepared defense, the burden shifts to the prosecution. Since the Commonwealth has failed to introduce any evidence to the contrary, we are constrained to conclude that the relator is entitled to habeas relief.
As previously mentioned the relator was charged with statutory rape. Section 4721 of the Pennsylvania Penal Code states in relevant part, that:
* * * if the jury shall find that such woman child was not of good repute, and that the carnal knowledge was with her consent, the defendant shall be acquitted of rape, and be convicted of fornication.