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March 31, 1971

UNITED STATES of America ex rel. John H. HARDY
Joseph R. BRIERLEY, Superintendent

Luongo, District Judge.

The opinion of the court was delivered by: LUONGO

John Hardy was convicted in state court in 1952 on a number of bills of indictment (Nos. 550, 552-566, 568-570, March Sessions 1952, Court of Quarter Sessions, Philadelphia County) charging robbery, assault, aggravated robbery, aggravated assault, and assault with intent to ravish, all of which arose out of a series of armed robberies perpetrated by Hardy, alone or with others, during January and February, 1952.

 Hardy was sentenced to consecutive terms of 5 to 10 years on eight of the bills (sentence was suspended on the others), a total of 40 to 80 years. Six of the convictions and sentences were later set aside by the state courts (see infra) leaving 5 to 10 year sentences on the two bills under attack here. Hardy was paroled on February 27, 1962 but was returned for violation of parole on June 3, 1965. The maximum sentence on these charges *fn1" will expire on June 3, 1975.

 In this petition for writ of habeas corpus, Hardy attacks two convictions (bill Nos. 558 and 559) stemming from the robbery of a real estate office at 1631 Wallace Street, Philadelphia. He has advanced several grounds for issuance of the writ: (1) there was no formal adjudication of guilt on bills 558 and 559; (2) the fruits of an illegal search and seizure and a coerced confession were used at the trial; (3) he was deprived of the right to a trial by jury; (4) he was denied the effective assistance of counsel; (5) there was insufficient evidence to support a conviction of guilt; and (6) the trial was so unfair as to deny him due process of law.

 On March 26, 1952, Hardy and two co-defendants appeared for trial before the Honorable Eugene V. Alessandroni. At the morning session Hardy, in the absence of counsel, entered pleas of guilty to bills 553, 555-557, 560-566, 568-570 and not guilty to bills 550 and 552. (The two latter bills, charging Hardy with assault with intent to ravish, stemmed from incidents connected with the Wallace Street robbery). As to bills 558 and 559, the record is not clear as to what pleas were entered, either at the morning session or in the afternoon session when Hardy's counsel, Garfield Levy, was present. The trial judge seems to have proceeded on the assumption that Hardy had entered a plea of guilty to all but the fifth count on each of these bills, waiving jury trial as to those counts.

 At the trial the following facts were established:

 On January 7, 1952, Hardy and Robert Ruffin entered the real estate office of George Parker at 1631 Wallace Street, Philadelphia. Displaying a revolver, Hardy forced Parker and his secretary to lie on the floor. Hardy then took Parker to the rear of the office and ordered him to open a safe, after which he bound Parker and threw him in a closet. While Ruffin rifled some desk drawers, Hardy took the secretary to the rear of the office and made improper advances to her and slapped her. When the secretary warned him that the Brink's men would soon be arriving, Hardy stopped molesting her and put her in the closet with Parker. Detective Sergeant Thomas McDermott of the Philadelphia police testified that Hardy orally admitted his participation in the robbery but denied that he had attempted to ravish the secretary. Hardy testified to the same effect when he took the stand in his defense. A wallet and a pair of earrings which had been stolen from the secretary, and the revolver used in the commission of the crime, were introduced in evidence at the trial. The wallet and the revolver had been found by the police during a search of Hardy's apartment on the night of his arrest.

 Bill 552 was nol prossed and Hardy was found guilty on bills 550, 558 and 559.

 In 1967 Hardy filed a petition for post-conviction relief under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. § 1180-1 et seq. (PCHA). Judge Edward J. Bradley conducted a hearing on that petition on May 8, 1967. Full opportunity was afforded to Hardy to present evidence relating to the issues raised. He offered only his own testimony. *fn2" Because the trial record indicated that the guilty pleas on bills 554-557, 560 and 563 had been entered without the aid of counsel, Judge Bradley vacated those convictions and sentences at the end of the hearing, and at a later date, he granted Hardy leave to file post-trial motions nunc pro tunc on bills 558 and 559.

 The post-trial motions were filed and were argued before the Honorable Paul Chalfin who filed an opinion in which he concluded that Hardy had pled not guilty to all counts in bill 558 and guilty to all counts in bill 559 except the fifth. Judge Chalfin set aside the guilty pleas on bill 559. After considering the substantive issues raised by the motions, Judge Chalfin sustained the convictions on bill 558 and on the fifth count of 559. The Superior Court of Pennsylvania affirmed per curiam, Commonwealth v. Hardy, 216 Pa. Super. 832, 266 A. 2d 530 (1970), and allocatur was denied by the Supreme Court of Pennsylvania on July 20, 1970. The instant petition followed.

 Since Hardy was given a full and fair hearing in the state court on all issues raised by this petition, no evidentiary hearing was required or held in this court. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). After reviewing the state court records, I conclude that relator's contentions are without merit and the petition for writ of habeas corpus will, therefore, be denied.

 At no point in the trial transcript is there a formal pronouncement of guilt by Judge Allessandroni on bills 558 and 559. Hardy argues from this omission that there had been no adjudication of guilt and that he is, therefore, entitled to be released.

 In his opinion denying Hardy's posttrial motions, Judge Chalfin stated that "[the] lack of a formal pronouncement [of guilt] is not fatal where the record clearly shows that the defendant's guilt was in fact determined." Considering the overwhelming evidence of guilt and the fact that notations indicating a finding of "Guilty" appeared on the face of the ...

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