School the preceding day as a result of a lead from Carl J. Smith, a defendant in a related prosecution for the same offenses, who was arrested simultaneously with Williams. After Relator was confronted with this evidence, he made his confession that day. (Commonwealth's Trial Exhibit #19).
As a result of our review of the entire record, consisting of (1) the transcript of the trial, (2) the post-conviction proceedings, and (3) the evidentiary hearing held in this Court, as well as the briefs, joint pretrial order and arguments of counsel, we are satisfied that Relator's contentions are without merit and that the state courts' actions of affirmance of the conviction and denial of a new trial were proper.
Relator's four contentions and our reasons for rejecting them follow:
FIRST: Relator has alleged that he is entitled to a new trial because he was not afforded effective assistance of counsel required by the due process clause of the Fourteenth Amendment. Evidence produced at the hearing in this Court served to support Judge Honeyman's conclusion "that counsel performed in a competent and reasonable manner". Moreover, Mr. Phelps, his court-appointed counsel, was able to produce additional evidence of his consultation with Relator at the Montgomery County prison before the arraignment on May 19, 1961. (Commonwealth's Habeas Corpus Hearing Exhibit C-1).
Mr. Phelps further explained his failure to call certain witnesses to testify in Relator's defense. He stated that after interviewing Mrs. [Brown], Relator's supervisor at the Berian School, he concluded that she would be a hostile witness because of her concern that her school had been used as a repository for stolen goods. Phelps testified that he also contacted a witness, Naomi Ferrare, who would not willingly appear and would not in any event testify to Relator's advantage. [Habeas Corpus hearing (HCH) -- N.T. 44]. Phelps also recalled that he chose not to call Relator's mother to the stand as a witness, in order to avoid her admission on cross-examination that she had consented to the search of their home. (HCH-N.T. 25)
Admittedly, some may question whether counsel's investigation would satisfy the standard of preparation which courts currently require under prevailing standards, particularly in light of the several burglaries with which Relator was charged and the multiplicity of evidence regarding those burglaries. However, in assessing the competence of Relator's trial counsel to determine whether Relator was denied due process of law, we do not ask whether the defense was free from errors of judgment, but whether counsel exercised "customary skill and knowledge which normally [prevailed] at the time and place". Moore v. United States, 432 F.2d 730 (3d Cir. 1970).
We believe that Judge Honeyman, who found that counsel was an "experienced and competent attorney" who performed in a "competent and reasonable manner" was in a far better position than we are to determine the prevailing standard of competence in Montgomery County in 1961. The records and evidence before us do not persuade us that Relator's counsel was so ineffective as to challenge that conclusion.
SECOND: Relator claims that he was not present when the jury which convicted him was impaneled, in contravention of his right to due process guaranteed by the Fourteenth Amendment. Snyder v. Massachusetts, 291 U.S. 97, 106, 78 L. Ed. 674, 54 S. Ct. 330 (1934); Lewis v. United States, 146 U.S. 370, 372, 13 S. Ct. 136, 36 L. Ed. 1011 (1892); Hopt v. Utah, 110 U.S. 574, 578, 28 L. Ed. 262, 4 S. Ct. 202 (1884). Although the opinion of Judge Honeyman did not articulate a specific finding of fact with regard to Relator's presence at that crucial time, we assume "that the state trier of fact applied correct standards of federal law to the facts", Townsend v. Sain, 372 U.S. 293, 314-315, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), and "would have granted relief if it had believed [relator's] allegations". La Vallee v. Delle Rose, 410 U.S. 690, 695, 35 L. Ed. 2d 637, 93 S. Ct. 1203 (1973); United States ex rel. Thomas v. Maroney, 406 F.2d 992, 994 (3d Cir. 1969). Relator has not met his burden of establishing the erroneousness of the state court's determination by convincing evidence.
THIRD: Relator challenges the admission of his confession at his trial. We do not agree with his contention that the confession was unconstitutionally obtained. Custody by the police for four days, contrary to an order of the justice of the peace remanding him to the county prison, and the failure of the police to advise him of his right to counsel at the inception of his interrogation were but factors for the jury to consider in determining the voluntariness of his statements later introduced against him at trial. See Davis v. North Carolina, 384 U.S. 737, 740-741, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); United States ex rel. Rivers v. Myers, 384 F.2d 737, 740 (3d Cir. 1967). We must bear in mind in this connection that the trial occurred before the decisions of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and hence the applicable standard differs from that which is controlling now. See Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Thus, the jury was informed, correctly at the time, that absence of counsel, length of interrogation, or failure to warn defendant of a right to remain silent were not themselves and without more conclusive of the issue of voluntariness. [Tr. N.T. 499-504].
Neither the jury, which was carefully instructed as to its role in assessing the voluntariness of the confession,
nor Judge Honeyman, after the post-conviction hearing, chose to conclude that the confession had been coerced. Judge Honeyman stated in his opinion:
In this case, defendant was interrogated for no extended period of time during his stay under custody. There evidently was no pressure exerted upon petitioner, who was permitted to see his family in the interim between the arrest and the confession. The detectives said he talked freely, but only after being confronted with the numerous stolen articles removed from his home and place of employment. The defendant acknowledged he was adequately fed by the police, and his other physical needs were given attention. The Court just does not believe the defendant and his accomplice in their testimony concerning the physical violence inflicted upon him. In addition, a review of the trial transcript shows that the third defendant had testified there was no violence, brutality, threats or other coercion inflicted upon any of them by the police. Therefore, the Court concludes that this defendant's confession was voluntarily given. [Post-conviction hearing opinion (PCH), pp. 6-7].