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December 18, 1970

UNITED STATES of America ex rel. John M. FERENC
Joseph R. BRIERLEY, Supt.

John W. Lord, Jr., Chief Judge.

The opinion of the court was delivered by: LORD, JR.

JOHN W. LORD, Jr., Chief Judge.

 Relator, John M. Ferenc, who is presently a prisoner in a state penitentiary, has filed the present petition for habeas corpus relief from a 1969 conviction for burglary and larceny (Bill of Indictment No. 1989, January Term, 1969). Relator received sentences of concurrent terms of 4-10 and 1-3 years upon conviction of these charges by a jury in the Court of Common Pleas of Montgomery County.

 On September 25, 1970, this Court granted an evidentiary hearing solely on the question of whether or not the refusal of the Commonwealth to return to relator certain sums of money "not alleged by the Commonwealth to be involved in the offense charged, and which was eventually returned to him after the trial, thereby allegedly preventing him from hiring private counsel, effectively deprived him of the right to counsel." The hearing was held on November 2, 1970, following which the Commonwealth and relator submitted further briefs to the Court. For the reasons set forth below, we grant relator's petition.

 Relator was arrested on November 26, 1968. Using the sums given by the Commonwealth, which are disputed as too low by relator, but which are most favorable to the Commonwealth, approximately $717.42 was found in relator's automobile. Approximately $150.00 was alleged to have been stolen. Quoting from the Commonwealth's brief, "Sergeant Volp [sic] after arresting petitioner put out a national bulletin describing the money (approximately $567.42) found in the petitioner's automobile. * * * [No] responses were received concerning the balance of the money."

 At all relevant stages of the proceedings the learned trial judge offered to appoint a competent member of the Voluntary Defender's staff to represent relator. Relator refused each offer of such appointment, and, from the record, made a knowing and willing determination to conduct his own defense. *fn1" Normally, the Court would have no difficulty in holding that he had thereby precluded himself from alleging a denial of counsel. Here, however, running through the pages of the notes of testimony, accompanying his refusals of court-appointed counsel, was relator's claim that he was entitled to retain counsel with his withheld funds.

 While the Commonwealth has never raised this point in its briefs, it should be noted that the trial judge offered to delay the trial until a hearing could be had on the return of relator's money. Relator refused to accept the responsibility for a delay, and, following a lengthy exchange during which relator refused to ask for a delay, the court marked the case for trial. *fn2"

 In United States of America ex rel. Durocher v. La Vallee, 330 F.2d 303 (2nd Cir. 1964), the court heard four cases dealing with various aspects of the right to counsel. In the companion case of United States of America ex rel. Ripple v. Murphy, Id., the court was confronted with a prisoner who alleged that he had been denied access to counsel of his choice. "And in the application which he submitted to the District Judge for a certificate of probable cause, Ripple further maintained that he was 'not financially unable to retain counsel,' but instead asserted that he was 'denied the opportunity to do so'. In effect, therefore, Ripple was not claiming a denial of his right to court-appointed counsel, but a denial of the opportunity to secure private counsel of his own choosing." Id. at 306. The Court remanded the case for a District Court hearing on the habeas corpus petition "* * * as implemented by the more specific allegations contained in [his] application for a certificate." Id. at 307.

 The Commonwealth, in its brief contra relator's petition, presents three major objections to the granting of the writ. The first is that, with regard to relator's failure to testify on his own behalf at his evidentiary hearing, "The petitioner has failed to meet his burden through his own inaction." As authority for this assertion, it cites Bolden v. Pegelow, 218 F. Supp. 152 (E.D. Va. 1963); and Sewell v. Kennedy, United States Court of Appeals, 4th Cir., Memorandum Order, March 26, 1964, as standing for the proposition that "* * * a petitioner in a habeas corpus hearing who refuses to appear at said hearing justifies a refusal." Relator here did not refuse to appear. He petitioned the Court, was present at the hearing, called witnesses, and cross-examined those of the Commonwealth. In the Bolden case two of the plaintiffs alleged discrimination in prison. Respondents answered, a hearing was scheduled, and, plaintiffs refused, "* * * without justifiable excuse, to attend Court on the day set, and requested their Court-appointed counsel to move for dismissal of their respective complaints. The motions were granted and * * * were dismissed with prejudice." Id. at 153. We fail to see the applicability of that set of facts to the instant case.

 Second, and much more crucial to the question under consideration here, is this argument of the Commonwealth: "On September 29, 1969, the Commonwealth returned the balance of the petitioner's money less $318.60 which was used to pay the fine and costs imposed on his burglary conviction. The total amount returned to the petitioner amounted to approximately $248.82." *fn4"

 "It is difficult to see how the retention of $248.82 for a reasonable period of time deprived the petitioner of the assistance of counsel, especially in light of the financial resources at the petitioner's disposal." *fn5"

 The Commonwealth's argument is, therefore, that once the relator was convicted and fined, he did not have enough left to make a difference in whether or not he could retain counsel. This assumes that that amount of money used to pay the fine was always so earmarked by the Commonwealth, even before the trial, when it should have been available to retain counsel. Such an argument has no basis in law or logic.

 The last of the Commonwealth's arguments against the issuing of the writ is that even if it was inappropriate for the Commonwealth to retain relator's money, any harm which he suffered thereby was "harmless error beyond a reasonable doubt." The basis for this argument is that the court-offered attorney was an "experienced and highly capable defense attorney." We are not here considering the question of his competence. We consider and decide, rather, that relator was entitled ...

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