Relator was convicted on Bills of Indictment Nos. 893, 896, 898 and 900, January Sessions, 1966, charging false pretenses. At the same time he was also convicted of conspiracy with a co-defendant, Harry Schwartz, now dead, on Bill No. 880. At the trial, which took place before the decision in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), Schwartz's statement, which referred in parts to Siegel, was read into evidence. Having exhausted his state remedies, relator now seeks here a writ of habeas corpus, charging that his Bruton rights were violated. There is no doubt that the use of relator's co-defendant's statement violated the Bruton rule, made retroactive by Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968). The Commonwealth, however, contends that the error was harmless under Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).
Before the reading of Schwartz's statement, the only evidence to connect him with Siegel as a co-conspirator was inferential. It was shown that Schwartz had appointed Siegel deputy constable in 1955; that Schwartz's wife and Siegel were both officers of the Active Collection Agency; that both Mrs. Schwartz and Siegel received compensation from the Agency and that Siegel's salary had mounted rapidly. Such evidence to establish Schwartz's conspiratorial connection with Siegel's activities was, at best, extremely weak. Of course, for Siegel to be convicted of conspiracy, there had to be at least a second participant. Unless Schwartz's connection with Siegel's illegal activities were proven, the conspiracy indictment against Siegel would fall. The statement provided this nexus between the two defendants. As the Commonwealth stated in its original Memorandum of Law:
Under these circumstances, the Schwartz statement was a "powerfully incriminating extrajudicial" statement which established not only Schwartz's, but Siegel's guilt of the separate and distinct crime of conspiracy. The writ will be granted as to Bill No. 880.