Biggs, Aldisert and Stahl,*fn* Circuit Judges.
The relator-appellant Kent was tried by the Commonwealth of Pennsylvania by a jury and was convicted of aggravated robbery and rape. He was sentenced on January 17, 1962. He took no appeal but filed a petition for a writ of habeas corpus in the Court of Common Pleas of Philadelphia County. His petition was denied without a hearing. The judgment of the Court of Common Pleas was affirmed by the Superior Court of Pennsylvania, Commonwealth ex rel. Kent v. Maroney, 206 Pa.Super. 734, 213 A.2d 408 (1965). Kent did not appeal to the Supreme Court of Pennsylvania. The period in which an appeal could be taken had expired at the time of his application for habeas corpus to the United States District Court for the Western District of Pennsylvania. That court decided that Kent's application should be tried by the United States District Court for the Eastern District of Pennsylvania and consequently transferred it. The United States District Court for the Eastern District of Pennsylvania denied the writ. We granted Kent a certificate of probable cause and the case was submitted, without oral argument, for our determination.
The operative facts can be set forth briefly. Since Kent was convicted we take the evidence most favorable to the Commonwealth, accurately set out in the opinion of the District Court*fn1 as follows: "The facts of the case are as follows: The victim [Lucy Walls] was acting as landlady or business agent for a 32-unit apartment building on Ridge Avenue [in Philadelphia]. One evening the relator [Kent] appeared, ostensibly for the purpose of renting an apartment. He was then shown several apartments and ultimately agreed to lease one for $15.00 per week. The victim then took him back to her apartment and made out a rent receipt indicating $5.00 deposit. The relator then signed the receipt 'Richard Smalls.' As the victim was annotating her records, the relator then placed a knife at her throat, and demanded that she turn over all the money. After she complied, he forced her to disrobe, placed her on the bed and then raped her. After completing this act, he departed. She immediately called the police who arrived a short time thereafter. The investigating detective testified that when he arrived at the victim's apartment, 'She was in a state of agitation.'
"The relator freely admitted having intercourse with her. However, he asserts that she freely submitted to him, in exchange for some money. The relator contends that while they were so engaged, she demanded more money, which he refused. The 'price' according to the relator, was $10.00, in addition to the $5.00 rent deposit. Afterwards, he took the entire $15.00 back from her. The reason he signed the name 'Richard Smalls' was apparently to conceal the fact that he was on parole."
It is clear that if the Commonwealth's evidence was believed by the jury, as it apparently was, Kent was guilty as charged of both rape and robbery. In fact Kent admitted robbery in his testimony at trial. This fact, however, does not aid us in view of the confusion in the record.
I. Adequacy of Legal Representation
Kent's primary contention is that he was not adequately or competently represented by counsel from the Public Defender's Office of Philadelphia. In this connection he asserts first that he was not informed or notified of his right to appeal. The Commonwealth does not contend that he was so notified and there is nothing in the record to contradict his statement. This matter was not directly discussed in the opinion of the District Court.
Kent also alleges that his trial counsel did not examine the facts of his case or prepare for trial until the day of trial. The appellee asserts, on the other hand, that an appearance had been entered for Kent by the Public Defender some months before the trial. There is, however, an hiatus in the proof. The fact that an appearance was entered by the Public Defender some months before the trial does not demonstrate that there was serious preparation for trial on the date of the filing of an appearance or at any time thereafter. Kent asserts as additional proof of inadequate representation that though Walls was examined at a Philadelphia hospital immediately following the alleged rape neither the Commonwealth nor Kent's own counsel offered the hospital report in evidence and he insists that the report should have been put in the record. We do not have the hospital report before us and nothing in the record informs us as to its contents. There may indeed be various reasons why it was not offered by either party but surmise cannot take the place of proof.
In United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3 Cir. 1968), this court adopted the doctrine that an untimely appointment of counsel will create a presumption that the defendant was prejudiced and shift to the State the burden of showing the contrary. In Moore v. United States of America, 432 F.2d 730 (3 Cir., 1970, Ct. en banc), this court stated: "We * * * overrule Mathis to the extent it adopted the presumption doctrine." In Moore, it was also said: "The adequacy of the representation which petitioner [relator] received, which is the real issue in this case, can only be decided upon an evaluation of the services rendered on his behalf," and further, "Whether an indigent is represented by an individual or by an institution, he is entitled to legal services of the same level of competency as that generally afforded at the bar to fee-paying clients. In both cases, therefore, the standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place." [Footnotes omitted.] An examination of the record in the instant case demonstrates a similarity to the circumstances of Moore and leads us to the conclusion that the standard set by Moore should be applied here. It follows that the case must be remanded to the District Court to determine whether that standard was complied with by Kent's counsel in the State trial court.*fn2
We bear in mind that the case at bar differs from Moore in that Kent seeks relief by way of habeas corpus from a state court judgment, while in Moore the post-conviction proceedings were had after the defendant had been convicted under a federal bank robbery statute. See 28 U.S.C. Section 2255. But there is useful dictum in Moore which we feel should be applied here, as follows: "While a distinction might be attempted between attacks on state convictions under the Fourteenth Amendment and those on federal convictions under the Sixth Amendment, we believe the increased recognition of the constitutional right to the assistance of counsel requires that the standard which prevails in federal cases under the Sixth Amendment should be applied equally to state convictions, to which the same guarantee is made applicable by the Fourteenth Amendment under Gideon v. Wainwright [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799]. The standard of normal competency [footnote omitted] applies equally in each case. This standard also makes it clear that the ultimate issue is not whether a defendant was prejudiced by his counsel's act or omission, but whether counsel's performance was at the level of normal competency. That the client was prejudiced by a failure in performance is of course evidentiary on the issue."*fn3
II. Duplicitous Counts and Indictments
Kent also asserts that he was illegally convicted and sentenced on duplicitous indictments and duplicitous counts of indictment. Kent was indicted on October 19, 1961 by a grand jury of the Court of Oyer and Terminer of Philadelphia on indictment No. 1259 alleging that Kent (Count 1) being armed with an offensive weapon feloniously assaulted Lucy Walls with intent to rob her, and (Count 2) with an offensive weapon did rob Walls of $11, and (Count 3) did rob Walls of $11 and immediately after such robbery, beat and did violence to Walls. On this indictment Kent was sentenced to prison for a term of not less than three years nor more than six years, to begin with the expiration of ...