Kalodner, Staley and Gibbons, Circuit Judges.
This is an appeal from the order of the District Court for the Eastern District of Pennsylvania, following an evidentiary hearing, which denied appellant's petition for a writ of habeas corpus. That petition sought relief from confinement resulting from appellant's conviction in the Philadelphia Quarter Sessions Court on charges of aggravated robbery and conspiracy. In the state criminal trial appellant's defense was alibi. With respect to that defense one of his habeas corpus contentions is relevant.*fn1 That contention is that he was denied the effective assistance of counsel because the trial attorney furnished by the Philadelphia Voluntary Defender's Association, confronted on the morning of trial with the absence of employment records which might have corroborated his alibi contention, decided not to ask for a continuance in order to subpoena either a witness or the records.
At the time of the evidentiary hearing in the district court the governing precedent was United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3 Cir. 1968). This was so because although the Defender Association had been appointed at the time of appellant's arraignment, the actual trial attorney did not obtain the file until the eve of trial and did not see his client until the morning of trial. Relying on the Mathis presumption of prejudice arising from such circumstances, court appointed counsel at the habeas hearing established these facts, the absence of both the alibi witness and records, and little more. The Commonwealth, responding, offered the testimony of the trial attorney. It and the district court assumed that the conviction should be set aside only if the service of trial counsel was of such caliber as to amount to a farce or mockery of justice. See, e.g., United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1213 (3 Cir. 1969); United States ex rel. Darcy v. Handy, 203 F.2d 407, 427 (3 Cir. 1953). The Commonwealth did not call the alleged alibi witness or produce the employment records. The district court concluded that the services of counsel did not amount to a farce or mockery of justice and on this ground denied the writ.
Moore v. United States, 432 F.2d 730 (3 Cir. 1970), decided after the district court habeas corpus hearing but before the argument on this appeal, overruled United States ex rel. Mathis v. Rundle, supra, eliminating the presumption of prejudice. It also clarified the standard against which adequacy of representation is to be measured. For the "farce or mockery of justice" standard of United States ex rel. Carey v. Rundle, supra, and United States ex rel. Darcy v. Handy, supra, we substituted a test of normal competency. Thus both sides in the district court proceeded on assumptions as to their burden which in the light of Moore are invalid. Appellant's counsel, relying on the Mathis presumption, failed to show how trial counsel's actual performance prejudiced the alibi defense. The Commonwealth, relying on the mockery of justice standard, failed to explore whether what was neglected was in fact prejudicial. As we shall develop, the record leaves the question of prejudice unanswered.
An investigator for the Voluntary Defender's office interviewed appellant some two weeks before trial and learned about the alibi defense, which was that appellant was working elsewhere at the time of the offense. The report of the interview was placed in the file. Thereafter another investigator, Arthur, interviewed appellant's employer, Foust, and prepared a report. On the day before trial the trial attorney took the file home in the evening and reviewed it. From the file report of the initial interview he became aware of the alibi defense. Arthur's report of the interview with Foust was not in the file. The trial attorney realized more investigation would be needed, and marked on his review notes "cfn," meaning continue until further notice.
The next morning at the Defender's office the trial attorney obtained Arthur's report of the interview with Foust. With respect to that report he testified:
Q. What was the substance of Arthur's report?
A. The report was that he had interviewed the wife and received very little cooperation from her and he talked with his employer and his employer told him he had no way of checking the amount of days off in February and the only days that he could have off were the days that it rained or snowed and the Internal Revenue had his books.
Q. Did Mr. Arthur indicate whether or not he believed Mr. Foust?
A. No. He said, "I really don't believe his Charles Foust, employer."
There is nothing in the record from which we can infer whether the investigator's skepticism about Charles Foust referred to Foust's statement as to the location of the books, or referred to Foust's claimed inability to determine on what days appellant worked.
The trial attorney, having read Arthur's report, visited appellant at the cell room in City Hall. With respect ...