The opinion of the court was delivered by: GOURLEY
This is a Petition for Writ of Habeas Corpus filed by counsel on behalf of relator, an inmate of a State penal institution located within this District. Relator was tried before a jury at No. 229 Q.S., September Sessions, 1967 in the Court of Common Pleas of Washington County, Pennsylvania, upon an indictment charging him with forcible rape and the "statutory" rape of a minor under the Act of June 24, 1939, P.L. 872, § 721, as amended, 18 P.S. § 4721 (1970). The jury rendered a verdict of guilty of statutory rape. A Motion for New Trial and in Arrest of Judgment and a Motion to Strike Conviction subsequently were filed, raising the same issues which are now presented herein. After hearing upon oral argument, the Motions were denied. Subsequently, judgment of sentence of two and one-half to six years imprisonment was imposed.
An appeal was taken to the Superior Court of Pennsylvania at No. 25, April Term, 1969 and said Court affirmed the lower court in a per curiam opinion. Commonwealth v. Paris, 216 Pa. Super. 803, 264 A. 2d 170 (1970). A Petition for the Allowance of an Appeal was denied by the Supreme Court of Pennsylvania at No. 3257A Misc. Relator then filed the instant Petition for Writ of Habeas Corpus in this Court.
State remedies have been exhausted. By Order dated July 7, 1970, this member of the Court called for the entire State records of relator's criminal proceedings. Upon review of the Petition and the State records, the Court is of the opinion that an evidentiary hearing is not warranted and that relief should be denied.
Briefly, the circumstances of the crime were these. On the night of June 14, 1967, the prosecutrix, a fifteen year old girl, was staying with her aunt in Houston, Pennsylvania. While making a visit to a drugstore in the evening, she was invited to a "party" by two boys. She was taken in their automobile to an area in the vicinity of a slag dump where a large number of other boys subsequently arrived, including the relator and two companions who had been drinking at a bar and were told of the "party" out in the country while leaving. After some beer drinking by the persons present, the prosecutrix was prevailed upon by four or five individuals, four of whom were later criminally charged, to engage in intercourse in the front seat of an automobile driven to the party by one of the boys present. Two of the four also committed acts of sodomy upon her. The prosecutrix extracted herself from this confrontation by leaving the party alone and walking to a highway where she received the assistance of a passerby. Medical testimony established that the prosecutrix had theretofore been a virgin and that she suffered contusions and other physical abuse during the confrontation.
Relator was tried singly before a jury. Subsequently, three other participants were tried together. Although there was conflicting evidence as to whether relator's intercourse with the prosecutrix had been forcible or otherwise, the jury convicted relator only of statutory rape. Relator raises herein seven issues challenging the validity of the conviction.
It is first contended that the representation of relator and two others by the same counsel presented a conflict of interest which deprived relator of his right to a free and unfettered representation under the Sixth Amendment to the Constitution. At the preliminary hearing, relator and one Marion Serafin were represented by Michael E. Kusturiss, Esquire and one Michael Evans was represented by John F. Bell, Esquire. Both Kusturiss and Bell entered appearances for relator before trial. Kusturiss represented relator at trial. When the trial of Serafin, Evans and the fourth accused came on for hearing, Bell represented Serafin and Sanford S. Finder, Esquire represented Michael Evans. Thus, in fact, separate privately retained attorneys represented each of the defendants at the times of the trials.
Moreover, mere common representation of co-defendants is not in itself constitutionally infirm. Watkins v. Wilson, 408 F.2d 351 (9th Cir. 1969). Unless an actual conflict is shown to exist or reasonably can be foreseen, an attorney may in good faith represent several defendants. Kruchten v. Eyman, 406 F.2d 304, 311 (9th Cir. 1969). Also, a conflict of interest cannot be created out of mere conjecture as to what might have been shown. Lugo v. United States, 350 F.2d 858, 859 (9th Cir. 1965). Here plaintiff has not alleged nor does the record evidence any actual conflict of interest between relator and defendant Serafin. Defendant Serafin did not testify at his trial nor did he testify at the trial of relator. Relator testified at his own trial, but in no way did he implicate defendant Serafin. He did not testify at Serafin's trial.
While relator contends that, as a practical matter, neither relator nor Serafin could testify as witnesses for each other because they would thereby lose the privilege against self-incrimination, this would not be the result of common representation by a single counsel. Had it been the case that relator was not involved in the act charged and wished to testify to the effect that the prosecutrix had wrongly identified relator rather than Serafin as the offender, a conflict could have arisen out of dual representation. But there is no allegation that relator desired to make such a defense. In fact, he testified that he attempted intercourse but failed for lack of ability to obtain an erection.
It does not appear that there was, in fact, dual representation by counsel, and in any event, it is concluded that no actual conflict of interest to the prejudice of relator has been alleged or appears in the record.
It is contended that the trial of the relator before the same jury upon counts of both statutory and forcible rape compelled relator to implicate himself in the crime of statutory rape by proving the consent of the victim necessary to defeat the charge of forcible rape, thus depriving him of his Fifth Amendment privilege against self-incrimination. The case of Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970), pending in the Supreme Court of the United States, does not, as suggested by relator, present this issue. Rather, as noted by the trial judge in his Opinion denying post-trial motions, the case of In re Lane, 135 U.S. 443, 10 S. Ct. 760, 34 L. Ed. 219 (1890) finds no infirmity in an indictment charging a defendant with both forcible and statutory rape.
Relator contends that the trial judge prejudiced relator by making the statement that relator's constitutional rights "give him a very considerable advantage here." Read in the context of the explanation of relator's constitutional rights which followed, the comment was not constitutional error. Relator took the stand in his own behalf. The comment of the judge was not akin to an adverse commentary on the failure of a defendant to do so, as was the case in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), cited by relator.
It is contended that the trial judge erred in instructing the jury that if they found relator was an active participant in a crime of forcible rape, he would be guilty of the offense although he did not himself engage in intercourse. It is established substantive law that one aiding and abetting in a rape is guilty of the offense. Commonwealth v. Reilly, 200 Pa. Super. 461, 464, 190 A. 2d 164 (1963). Although the indictment charged relator with direct carnal knowledge of the prosecutrix, it afforded sufficient notice to relator of the possibility of conviction upon proof that he aided and abetted in a rape. The contention is without merit.
The indictment against relator contained two counts. The first charged relator with carnal knowledge of a child under the age of sixteen "without her consent." The second charged forcible rape. Relator contends that the indictment as originally drawn failed to provide him with sufficient notice of his being charged with statutory rape under 18 P.S. § 4721(b),