apartment, were introduced in evidence at the trial, as were Hardy's oral and written statements.
(a) The Search and Seizure.
A warrantless search is valid only if incidental to a valid arrest. See United States ex rel. Walls v. Mancusi, 406 F.2d 505 (2d Cir.), cert. denied, 395 U.S. 958, 89 S. Ct. 2099, 23 L. Ed. 2d 745 (1969); United States ex rel. Foose v. Rundle, 389 F.2d 54 (3d Cir.), cert. denied, 392 U.S. 914, 88 S. Ct. 2075, 20 L. Ed. 2d 1372 (1968). Hardy concedes that he was under arrest when the police entered his apartment, but he claims that the arrest was "unlawful" as without probable cause. Further, he asserts that even if the arrest was lawful, under Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), a search incidental to an arrest must be limited to the person arrested and the area within his immediate control, and that the search of his apartment exceeded this limitation.
This issue was raised before Judge Chalfin, who concluded that the error, if any, in allowing this evidence at relator's trial was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In arriving at the conclusion that there was overwhelming evidence of guilt, however, Judge Chalfin considered the statements made by Hardy to the police following his arrest and the testimony he gave at the trial. If Hardy made those statements to the police only because he was confronted with illegally seized evidence, the admissions and the written confession would be tainted by that illegality. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We must consider, therefore, whether the search was valid and this, in turn, will depend in large measure upon whether there was probable cause for the arrest.
Probable cause to arrest a person without a warrant exists where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
In the instant case the police knew from their own investigations that a series of robberies were being committed by the same man, alone or with others, and that after two of these robberies the man disappeared at the corner of Diamond and Carlisle Streets. They surmised that the perpetrator of these robberies would have had to enter one of three buildings, and hence, they began an investigation of the residents of those buildings. After another robbery the police discovered at the scene a letter sent from the General Loan Company to an unknown addressee that indicated that the addressee owed the Company an overdue balance of $12.69. A check of the company's files indicated that a John Hardy owed $12.69 and was in arrears and that he lived in one of the three buildings in the vicinity of Diamond and Carlisle Streets into which the police believed that the robber had disappeared. While admittedly close, I believe this combination of facts within the knowledge of the police gave them probable cause to arrest relator without a warrant. The arrest was, therefore, lawful.
Under the law prior to Chimel, a warrantless search incidental to an arrest could be extended to the premises within the possession and control of the person arrested. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). The search of relator's apartment fell within those limits, but beyond the limits of Chimel. The Court of Appeals for this Circuit has held that " Chimel does not apply in cases where the evidence complained of was gained from a search prior to the date of the decision in Chimel."
United States v. Schartner, 426 F.2d 470, 474 (3d Cir. 1970). See generally Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969).
The arrest was lawful and the search incident thereto was proper and the items discovered in the course thereof were properly admissible at relator's trial.
(b) Admissibility of Confession.
Hardy has alleged further that his written and oral statements were coerced. There was no objection to the introduction of these statements at trial. An examination of the record convinces me that the failure to object was a part of the trial strategy of the defense and validly waived Hardy's right to collaterally attack the use of those statements.
Pennsylvania follows the contemporaneous objection rule. Commonwealth v. Snyder, 427 Pa. 83, 233 A. 2d 530 (1967), cert. denied, 390 U.S. 983, 88 S. Ct. 1104, 19 L. Ed. 2d 1281 (1968). If Hardy's failure to object was a deliberate bypass of available state procedures, it waives his right to raise the question on a petition for writ of habeas corpus. See Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Whether an accused has thus waived his federal rights is, of course, a question of federal law and an effective waiver of constitutional rights requires an "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938).
The record in this case indicates that Hardy and his counsel were seeking to obtain leniency from the court by emphasizing Hardy's cooperation with the police. The defense to the substantive charges was directed almost exclusively to the sexual charge. All of Hardy's statements throughout sought to exculpate him on that charge and his testimony at trial was consistent therewith. I believe that Hardy wanted the statements in evidence, both to impress the court with his forthrightness and to convince the court of his innocence on the sexual charge in an effort to obtain leniency in sentencing. This tactical decision is binding on Hardy and he cannot now complain because it failed to accomplish the desired end.
3. Waiver of Trial by Jury.
Hardy claims that he did not waive the right to trial by jury. State law requires a written waiver. 19 P.S. § 786. There is no written waiver in Hardy's record, but lack of a written waiver is not conclusive under Pennsylvania law. See Commonwealth ex rel. Moore v. Tees, 179 Pa. Super. 634, 118 A. 2d 224 (1955), cert. denied, 351 U.S. 913, 76 S. Ct. 705, 100 L. Ed. 1447 (1956). Judge Chalfin concluded, from a review of the state record, that Hardy had validly waived the right to trial by jury under state law. That record also reveals waiver by federal standards. During the arraignment on the various bills of indictment, Hardy expressed his intention to waive a jury trial on bills 550 and 552, and counsel indicated the same intention in the afternoon regarding bills 558 and 559.
Further there is a notation on the bills of indictment that jury trial had been waived. These are sufficient to support the conclusion that there had been a valid waiver of trial by jury especially since no allegation of lack of waiver was made for a period of fifteen years.
4. Lack of Effective Assistance of Counsel
Relator argues that his counsel was ineffective. This argument is based on matters discussed elsewhere in the opinion and requires no extensive repetition here. The standard to be applied to determine whether or not one has been fairly represented at trial is whether counsel has exercised "the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970).
The charge in the instant case is based upon (1) failure to object to use of illegally seized evidence, (2) failure to object to use of the confession, and (3) waiver of jury trial. As to (1), counsel was not required to anticipate Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), which was not decided until nine years after this trial; as for (2), it has been noted above that this was a tactical decision and was not an unreasonable one under the circumstances; and finally, as for (3), the decision to waive a trial by jury and to permit the matter to be tried by a judge is purely a tactical one and, without more, affords no basis for a charge that counsel was incompetent. See generally Barham v. Cox, 312 F. Supp. 583 (E.D. Va. 1970); United States ex rel. Robinson v. Rundle, 320 F. Supp. 883 (E.D. Pa. 1970).
5. Insufficiency of Evidence.
Hardy contends that the evidence is insufficient to support the verdicts of guilty, particularly the charge relating to taking property from the secretary.
The only constitutional question raised by this argument is one of due process. There is no violation of due process if there is any evidence to support the conviction. Thompson v. City of Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960). I have carefully reviewed the state record and have concluded that there is more than sufficient evidence as to each of the convictions to satisfy the requirements of due process. United States ex rel. Flowers v. Rundle, 314 F. Supp. 793 (E.D. Pa. 1970).
6. Lack of Fair Trial.
Hardy's final contention is that the totality of the circumstances surrounding his 1952 trial add up to the denial of a fair trial. I have examined the state record carefully with this charge in mind and, while it leaves much to be desired from today's more enlightened standards, the trial on the only remaining charges was a fair one from the standpoint of satisfying requirements of due process of law.
The petition for writ of habeas corpus will be denied.