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DALE v. WILLIAMS

February 24, 1971

Arthur DALE, H-5302,
v.
N. A. WILLIAMS, Superintendent, S.C.I. Huntingdon


Weiner, District Judge.


The opinion of the court was delivered by: WEINER

WEINER, District Judge.

 Having exhausted all available state court remedies the relator has presented to this Court his petition for a writ of habeas corpus. The state court record is adequate for a determination of the merits of the relator's contention and no evidentiary hearing is required. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Since the facts are not in dispute, there is presented solely an issue of law.

 Our examination of the record indicates that the petitioner was sentenced to a term of imprisonment of not less than seven and one half years nor more than fifteen years, on the charge of rape, to commence at the expiration of a sentence of not less than five years nor more than ten years imposed on the charge of robbery. As succinctly stated by Judge Hoffman in his dissenting opinion *fn1" "The issue in this case is whether a new trial should be awarded because the prosecutor allowed a co-defendant Joseph Charles, who appeared for the Commonwealth, to testify falsely that no promises of special consideration had been made to him in exchange for his testimony". However, we would also point out that the district attorney who prosecuted the petitioner acted in the same capacity in the Charles case.

 The issue focused upon stems from the circumstances that surrounded the acceptance of a plea of guilty entered by Charles who was a participant in the same criminal act. Reference to the record of Charles' guilty-plea hearing reveal the following dialogue:

 
"Mr. Sprague [the Assistant District Attorney]:
 
* * * I have been advised that since this proceeding started, as Your Honor heard, no offer, no deal, or commitment of any sort was offered to this defendant, and the Commonwealth was ready to proceed to trial at this time.
 
I have been advised that the defendant now desires to cooperate with the Commonwealth and to testify for the Commonwealth, at the same time reiterating that he will have no deal or commitment, and I would ask at this time that sentence be deferred."
 
"The Court:
 
I would like to ask has he named or have you been able to ascertain the identities of the other young men in this?"
 
"Mr. Sprague:
 
May I say that other persons are under arrest and are awaiting trial. I have told counsel and the defendant if the court sees fit to defer sentence, I am going to have Mr. Alessandroni and Detective Winchester speak with the defendant and find out the extent of his testimony and his availability to the Commonwealth."
 
"The Court:
 
You promise the Court you are going to name those five men to this detective and do it today. Give them every bit of names, addresses, nicknames and everything else and what they did. It may save you many, many long years. Don't involve anybody if it isn't true, but tell the truth on all of ...

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