Van Dusen, Aldisert and Gibbons, Circuit Judges.
The Commonwealth of Pennsylvania appeals from a district court order, 303 F. Supp. 972, granting a writ of habeas corpus unless the petitioner is afforded a new trial.*fn1 The petitioner was tried in the state court before a jury on April 21, 1966, on two separate indictments charging rape (July Sessions, 1965, No. 1368) and unlawfully resisting arrest (September Sessions, 1965, No. 428). The jury adjudged him guilty on both counts and he received a sentence of four to ten years for rape and a suspended sentence on the charge of resisting arrest. After the time for direct appeal had expired, petitioner sought relief under the Pennsylvania Post-Conviction Hearing Act, and a direct appeal nunc pro tunc was allowed. On appeal the judgment of sentence was affirmed by the Pennsylvania Superior Court. Commonwealth v. Green, 209 Pa.Super. 764, 230 A.2d 919 (1967). The Pennsylvania Supreme Court denied allocatur.
Thereupon petitioner filed a petition for federal habeas corpus. That petition alleged as grounds for relief essentially the same grounds which had been presented in the Pennsylvania Post-Conviction Hearing Act proceedings. These grounds were:
1. The prejudicial consolidation for trial of two indictments for dissimilar and unconnected offenses, rape and resisting arrest.
2. The failure of the trial court to give a cautionary instruction not to consider evidence of one offense as proof of the other.
3. The failure of defense counsel to accede to the petitioner's wish to be tried by the court without a jury, and counsel's insistence upon a jury trial.
4. The inadequacy of counsel.
The district court concluded that an evidentiary hearing was necessary, and, after that hearing, granted the writ on the ground that the consolidation for trial of the separate indictments, coupled with the absence of a cautionary charge, was so fundamentally unfair as to violate due process.*fn2 It did not reach petitioner's contentions with respect to counsel's insistence on a jury trial, or with respect to the adequacy of his representation.
On this appeal the Commonwealth urges that the district court erred in disregarding the failure by counsel for the petitioner to object to the consolidated trial or to request a cautionary charge. It urges that defense counsel permitted the consolidation as a matter of trial strategy and that such a strategic decision may not be reviewed in a federal habeas corpus proceeding unless the strategic decision was outside the range of normally competent representation. Here, it contends, the district court, with the benefit of hindsight, has merely substituted its tactical judgment for that of the defense counsel who tried the case. The rape charge resulted from a complaint, made on July 3, 1965, by the prosecutrix Sylvia Hall. Her testimony, uncorroborated except for a complaint to the police shortly after the incident and a medical report showing recent sexual intercourse, was the only evidence the Commonwealth produced on that charge. The appellee's defense was that the intercourse was consensual, and that the rape charge resulted from Miss Hall's vindictiveness at his refusal to pay her an agreed upon five dollars. Appellee voluntarily surrendered to the police at a police station when he was informed of the rape complaint, and was released on bail.
The charge of resisting arrest grew out of an incident which occurred on August 27, 1965. The Commonwealth evidence on that charge was that two Philadelphia police officers on patrol in the vicinity of Haines and Garden Streets heard what sounded like gunshots. They observed a crowd of people, one of whom pointed to appellee who was standing apart from the others. As the officers approached they noticed something in appellee's hand which he threw against a wall, where it struck with a metallic sound. Appellee said, "I only took two dollars from the man," and clutched two dollars in his hand. He broke from the officers, started to run, and had to be subdued by force. The object which was thrown against the wall was not recovered. Appellee's defense was that, on August 27, 1965, he was defending himself against attack by friends of Sylvia Hall, the prosecutrix, whom she had sent to harm him. Instead of coming to his aid, the police allowed the attackers to disperse and arrested him for resisting an unlawful arrest.
At the habeas corpus hearing the Commonwealth produced the testimony of Austin Hogan, Esq., who at the time of the trial was an Assistant Voluntary Defender on the staff of the Philadelphia Voluntary Defender Association. Hogan had interviewed the appellee in advance of trial and had obtained appellee's version of both events. In his words:
"* * * it seemed to me, that he would testify well in his defense, that his defense could be presented as an integrated whole, that is to say his victimization by the complainant in the rape case and her vindictiveness extending to setting thugs upon him as the basis for resisting arrest and assault and battery case, and for that reason I must ...