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November 3, 1969

UNITED STATES of America ex rel. Herbert TAYLOR
Alfred T. RUNDLE, Superintendent

The opinion of the court was delivered by: MASTERSON

 Relator, Herbert Taylor, is presently incarcerated at the State Correctional Institution at Graterford, Pennsylvania. He seeks release from custody by this habeas corpus petition on the grounds that:

 (1) His counsel represented conflicting interests at a hearing where defendant pled guilty and was sentenced;

 (2) His guilty plea was not intelligently and voluntarily made;

 (3) His counsel was ineffective;

 (4) His guilty plea was induced by constitutionally infirm evidence.

 Since we find that relator's first contention is meritorious, we find it unnecessary to discuss his other contentions.

 Relator pled guilty to burglary and larceny on December 15, 1964, in the Court of Quarter Sessions, Montgomery County, before the Honorable David Groshens and received a sentence of 5-10 years. No inquiry was made at that time as to whether defendant's plea was voluntarily and understandingly made. Subsequently, Taylor filed in the same court a Post Conviction Hearing Act petition raising in substance the same claims that are before us. This petition was dismissed on May 12, 1966. On appeal to the Superior Court of Pennsylvania, this dismissal was affirmed per curiam on October 19, 1966. Relator's appeal to the Supreme Court of Pennsylvania was denied per curiam on December 29, 1966. Thereafter, petitioner filed with this Court his petition for a writ of habeas corpus and an evidentiary hearing was later held. It was conceded by the District Attorney at the hearing that state remedies have been exhausted and we agree.


 Petitioner Taylor is a 28 year old male Negro with an 11th grade education. His past record includes several narcotics charges which were discharged and several convictions of both narcotics and burglary charges. Petitioner pled guilty to at least one of these previous charges.

 Taylor and his co-defendant, David Ingram, were stopped by Officer Charles Schmidt on Sunday morning, May 24, 1964, at 2:30 A.M. while driving toward Philadelphia on Montgomery Avenue in Lower Merion Township, Pennsylvania, in a 1954 Buick Station Wagon with a missing right front fender and headlight. Ingram was the driver and Taylor his passenger. Schmidt testified at the state sentencing hearing that he stopped Taylor and Ingram to investigate the possibility that the station wagon was involved in an accident. At our evidentiary hearing and in his arrest report, however, he stated that he stopped the defendants because they appeared lost. (Taylor and Ingram were stopped about an hour earlier in the same township for the same defective headlight and fender and were released). The officer also testified at our hearing that the defendants appeared "glassy-eyed" as if they had been drinking. However, neither in his arrest report nor in his testimony at the state sentencing hearing is such a description of the defendants given.

 After Schmidt stopped the car, Ingram went to meet him and, upon request, produced his owner's card and driver's license. This meeting took place a few feet from Ingram's car, while Taylor remained inside. After inspecting Ingram's owner's card and license, the officer apparently walked over to the station wagon, peered in with his flashlight and noticed several boxes in the rear portion which were marked as containing televisions and radios and were stenciled "Ardmore". The boxes were partially covered with an old rug. When Schmidt questioned Ingram about the cartons he was told that he was delivering these items for his boss in Germantown but did not know the address and was taking them home for the night. At our evidentiary hearing, the officer testified that he also questioned Taylor and that Taylor gave him a story contradicting Ingram's. The officer's arrest report, however, indicates that he only questioned Ingram and his testimony at the state sentencing hearing does not refer to any contradictory stories. Schmidt then called for assistance and several officers later arrived. Taylor and Ingram were then taken to police headquarters and placed in a cell. A call was put out on the police radio to check whether any appliance stores in the area had been burglarized. It was not until 3:42 A.M., according to Schmidt's report, that the police learned that the Singer Sewing Machine Company in Ardmore, Pennsylvania, had been burglarized and that the items in the rear of the station wagon were stolen. The defendants were confronted with this finding and some 30 hours later, on Monday morning, May 25, 1964, confessed. No lawyer was present at the time they made their statement.

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