hearing identifications by the other witnesses on witness Coons' testimony is therefore not per se ground for an evidentiary hearing nor a writ of habeas corpus. Assuming some influence arguendo, it has not been shown how counsel at trial, who was aware of witness Coons' presence at the preliminary hearing, could have more effectively assisted petitioner had he been present at the preliminary hearing. Second, petitioner notes that witness Reneker stated incorrectly at the preliminary hearing that Schartner was the robber who wore the hat at the time of the robbery. However, petitioner's counsel at trial was aware of this misidentification and cross-examined the witness about it (N.T. 59); furthermore, the trial judge charged the jury on this point (N.T. 241). Commonwealth v. Brown, 217 Pa. Super. 190, 269 A. 2d 383 (1970), cited by petitioner, is distinguishable in that at the preliminary hearing there, the victim failed to identify the defendant who was without counsel, but this failure was not brought out at trial. Third, petitioner requested counsel at the preliminary hearing, requested a postponement to obtain counsel, and informed the magistrate that he was unable to defend himself. Since at the time of the hearing, petitioner was neither entitled to have counsel present nor was he called on to defend himself, this contention is without merit except insofar as it raises the question whether there was any prejudice to petitioner because counsel was not present at the preliminary hearing. I find that the absence and denial of counsel at the preliminary hearing did not contribute to the guilty verdict against petitioner and was harmless error beyond a reasonable doubt under the circumstances. Coleman v. Alabama, supra.
Before proceeding to petitioner's fourth area of objection, it must be noted that although each of the three pre-trial proceedings discussed above has been viewed individually, the state court trial judge's actual finding was that the witnesses' in-court identifications had a basis independent of all the pre-trial proceedings. For the reasons presented with respect to the separate pre-trial proceedings, and based on this reliable finding after a full hearing, the cumulative effect of the three pre-trial proceedings is not a ground for a federal evidentiary hearing or for a writ of habeas corpus.
IV. ASSISTANCE OF COUNSEL
Petitioner alleges that his privately retained counsel's handling of his defense was so incompetent as to render his conviction a violation of the Fourteenth Amendment guarantee of due process. Petitioner cites Lunce v. Overlade, 244 F.2d 108 (7th Cir. 1957) which held that "where the representation of an accused by his counsel is so lacking in diligence and competence that the accused is without representation and the trial is reduced to a sham, it is the duty of the state to see that the essential rights of the accused are preserved by appropriate intervention." 244 F.2d at 110. The misconduct by counsel in that case, unfamiliar with the law of the state in which the defendants were tried, was flagrant: failure to challenge the sufficiency of the affidavit, which apparently did not charge the crime for which the defendants were tried and convicted; permitting incompetent, damaging hearsay evidence to be introduced; failing to request instructions on intoxication; voicing no objections to instructions given to the jury which were highly questionable and incomplete; failing to save his exceptions; and, in most of what he did do, being ineffective in not complying with local law. 244 F.2d at 110. United States ex rel. O'Brien v. Maroney, 423 F.2d 865 (3rd Cir. 1970) held that due process is not violated unless the "'misconduct of his counsel [amounted] to a breach of his legal duty faithfully to represent his client's interests.'" 423 F.2d at 870. In United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1213 (3rd Cir. 1969), the general standard was stated to be "that a constitutional question is presented if counsel's performance was so incompetent or negligent as to constitute the proceedings a farce or mockery of justice shocking to the conscience of the court." United States ex rel. Washington v. Maroney, 428 F.2d 10 (3rd Cir. 1970), one of the very few cases in which ineffective assistance of counsel and prejudice thereby has been found, is distinguishable in that there counsel entered the case about ten minutes prior to trial and had no time to prepare for it, failed to object to a questionable confession, failed to impeach a key prosecution witness with a criminal record, and failed to call any witnesses. These facts, unlike those in petitioner's case, are shocking to the conscience of this court also. Petitioner alleges eleven reasons in support of his charge of incompetency. As will appear below, some of these reasons are without merit; the rest do not amount to misconduct which was a breach of counsel's "legal duty faithfully to represent his client's interests."
(1) Petitioner alleges it was incompetent to request petitioner, who had taken the stand on his own behalf, to explain his past criminal record to the jury. Counsel's request clearly was a tactical maneuver to avoid having this criminal record brought out by the Commonwealth. Petitioner contends, however, that this record could not have been brought out on cross-examination, and should not have been brought out on direct examination, because of the provisions of the Act of 1911, P.L. 20, § 1, 19 P.S. § 711, set out in the margin.
As petitioner alleges, no questions were asked of him to establish his good reputation and no evidence had been previously introduced to establish it. However, 19 P.S. § 711 does not, and did not at the time of this trial, protect a defendant from having the Commonwealth call a court clerk to testify to defendant's record of prior convictions of felonies in an effort to impeach a defendant's credibility whenever the defendant testifies on his own behalf. See e.g., Commonwealth v. Butler, 405 Pa. 36, 47, 173 A. 2d 468 (1961). Thus, counsel's tactical maneuver here was a sound exercise of discretion.
(2) Petitioner next contends that he was prejudiced because his counsel did not move to sequester the witnesses who were thus able to listen to each other's testimony. Commonwealth v. Kravitz, 400 Pa. 198, 217-218, 161 A. 2d 861 (1960) holds that the sequestration of witnesses is in the discretion of the trial judge. Even if the trial judge would have granted a sequestration motion, it appears from the record in this case that petitioner was not prejudiced by counsel's decision not to move for sequestration. The testimony of each of the three identification witnesses was distinctive as to why they were able to identify petitioner.
(3) Petitioner contends that his counsel should have moved for a mistrial when a Commonwealth witness testified that after the police learned that petitioner owned a car which fitted the description of the robbery getaway car in appearance, make, and the last three digits of the license number, they went to the "R & I or B.C.I." files in Harrisburg to secure a photostatic copy of a photograph of him (N.T. 101). When this testimony was given, petitioner's counsel did raise an objection at side bar because these initials indicate rogue's gallery photographs. The Court sustained the objection and petitioner's counsel stated he did not wish the court to make a formal statement to the jury. Apparently he believed that "R & I or B.C.I." might not have any significance to the jury. While such testimony as was given here could be prejudicial to a defendant, petitioner has cited no case, and my own research has found none, which holds that it is grounds for a mistrial. For this reason, and also because petitioner's counsel was probably aware at this point in the trial that petitioner would later testify on his own behalf, at which time his prior record of felonies could be introduced, it was not incompetent of counsel to fail to request a mistrial.
(4) Petitioner submits that his counsel should have objected to the relevancy of certain questions which the prosecution asked petitioner concerning his ownership of guns (N.T. 216-217). Petitioner was asked whether he had ever owned any guns. This question was relevant since guns were used in the commission of the robbery. He answered that he owned a revolver approximately three months earlier (which would be after the date of the crime). In an area where one or more guns are owned by a large proportion of the male population, it is difficult to see the prejudice to Defendant allegedly arising from this answer.
(5) Petitioner next contends that he was prejudiced by his counsel's failure to object to the relevancy of identification testimony concerning one Allen, petitioner's alleged partner in the robbery, and testimony linking petitioner to Allen (N.T. 188). The identification testimony helped to clear up the confusion about which robber was identified when and by whom; at any rate, it was not prejudicial. The testimony linking petitioner to Allen arose from questions concerning an effort by petitioner and Allen while on bail to prove that if they walked into the Acme Market which had been robbed they would not be recognized. Testimony concerning this effort was not irrelevant. Further examination by the prosecution concerning petitioner's past relations with Allen was perhaps objectionable, but it is difficult to know whether counsel decided not to object for some reason such as that a link had already been established.
(6) Petitioner submits that he was prejudiced by his counsel's failure to object to testimony by a Commonwealth witness as to the amount of a bond petitioner was under when he jumped bail (N.T. 84). The testimony as to the amount of the bond was not the result of a question directly asking for this information. Counsel could not have had time to object. Once the statement was out, there was little he could do about it since it would certainly not have been ground for a mistrial. Furthermore, it is doubtful that this testimony aroused any sympathy for the bail bondsman, since losses are part of his business. Any prejudice to petitioner due to such sympathy is unlikely.
(7) Petitioner's next contention is that he was prejudiced by his counsel's failure to object when a police detective testified that:
"[We] were notified from the Turnpike Commission that an automobile fitting this description [of the getaway car] . . . was in this vicinity and at that time the operator of that car . . . gave his name as August Schartner, 320 Ridley Avenue, Ridley Park."
As petitioner notes, this statement was hearsay. However, his conclusion that he was prejudiced is fanciful.
(8) Petitioner contends that he was prejudiced because his counsel allegedly did not seek the identity of, nor interview as possible defense witnesses, any of the several customers and clerks who witnessed the robbery (N.T. 24-25). However, Commonwealth identification witnesses Halke and Coons were the two witnesses to the robbery who had the closest contact with petitioner. It appears from the record that no one else had an opportunity to observe petitioner for as long or as closely as did these two witnesses.
They, as well as the third Commonwealth identification witness, made positive identifications. It is doubtful that a jury would give much weight to contrary testimony of witnesses who did not have the same opportunity to observe the petitioner. However, if it is true that petitioner's trial counsel made no effort to identify or interview possible defense witnesses, such a failure must be given some weight in determining whether his assistance was ineffective.
(9) Petitioner's ninth contention is of little merit: that he was prejudiced because his counsel failed to elicit the name of the third Commonwealth identification witness at his pre-trial lineup when only two such witnesses testified at trial. The testimony cited by petitioner to show that there were three witnesses at his lineup does not clearly refer to his lineup (N.T. 37); it may refer to the lineup of his alleged partner, Allen. This latter interpretation is supported by the testimony of a police detective in charge of the lineup. (N.T. 106).
(10) Petitioner submits that he was prejudiced because his counsel did not ascertain other Pennsylvania automobile licenses having the same last three symbols as petitioner's license. This contention relates to testimony by an Acme Market customer who was waiting in front of the market while his wife was shopping inside just before the time of the robbery. This witness testified that when his wife came out, he and she took the license number of a car which he had noticed making "suspicious" maneuvers. He testified that he was sure that the last three symbols were "50L" (N.T. 89) and that the car was a black Cadillac with a white convertible top, a 1955 or 1956 (N.T. 89). (A 1957 Cadillac fitting this description precisely was registered in petitioner's name [N.T. 100].) Assuming arguendo that petitioner's counsel was aware that such testimony would be presented at trial, or that after such testimony was presented he had sufficient time to act on it before the trial ended, and that he in fact did no research in this area, his omission would not appear to be at all unreasonable. It is assuredly very difficult to obtain information concerning the final three symbols, make, model, year and color of automobiles in Pennsylvania. Given this difficulty and the extremely small probability that another car and license plate of the same description could be found, counsel cannot be faulted in this connection.
(11) Finally, petitioner alleges that his trial counsel was ineffective in failing to submit any points for charge to the trial court. However, he has not pointed to any particular aspect of the charge, or omission from the charge, which was prejudicial to him. In fact, the charge was extremely fair to petitioner. For example, the charge pointed out the discrepancy in witness Reneker's testimony about which robber wore the hat during the robbery (N.T. 241).
Petitioner evidently has gone through the record in minute detail and has attempted to second-guess his trial counsel at every possible point. His only allegations of any merit are (2), (5), and (8) supra. Yet none of these allegations, if true, nor petitioner's other contentions, prove that his counsel did not faithfully represent his interests or flagrantly misconducted his defense. The assistance rendered to petitioner by his privately retained counsel was not merely not ineffective, it appears from the record to have been highly competent.
Petitioner's contentions having been found to be without merit, an order will be entered denying his petition for a writ of habeas corpus or in the alternative for a federal evidentiary hearing.