The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
Presently before this Court is relator's petition for a writ of habeas corpus. Relator is presently incarcerated at the State Correctional Institute at Dallas, Pennsylvania, serving a sentence of imprisonment of not less than ten nor more than twenty years imposed by the Court of Common Pleas of Delaware County after a jury verdict of guilty for murder in the second degree and conspiracy.
Following the denial of post-trial motions in arrest of judgments or for a new trial, the prison sentences were imposed on both convictions with sentences to run concurrently. An appeal from the sentence imposed on the murder conviction was timely filed in the Supreme Court of Pennsylvania. An appeal from the sentence imposed on the conspiracy conviction was filed in the Superior Court of Pennsylvania and subsequently certified to the Supreme Court of Pennsylvania. On April 20, 1972 the judgments were affirmed by the Supreme Court of Pennsylvania. Commonwealth v. Owens, 447 Pa. 294, 289 A.2d 721 (1972).
The petition for writ of habeas corpus, as originally filed in this Court, asserted the same claims as those raised on post-trial motions and on appeal to the Pennsylvania Supreme Court, i.e., (1) that the trial evidence was insufficient to warrant the convictions of second degree murder and conspiracy; and (2) that relator was denied due process of law because of ineffective trial counsel. On November 8, 1973, this Court adopted the Report and Recommendation of the United States Magistrate, Judge Naythons, holding that relator's claim of insufficiency of the evidence was frivolous but that an evidentiary hearing should be held with regard to relator's claim of ineffective trial counsel.
1. Insufficiency of the Evidence
As was pointed out in the Report and Recommendation, an examination of the state court record reveals that relator and three other men, Thomas McKnight. Joseph McKnight and Kenneth McIntyre, at the insistence of relator, agreed to entice John G. Gentry to a wooded area in Concord Township, and there to beat him up for having physically abused relator's sister. As Gentry approached the agreed upon location, one of the four jumped him from behind and a struggle ensued; when Gentry tried to flee from the scene, the conspirators followed in pursuit and, after catching up with Gentry, McIntyre first hit him with his fists and relator then handed McIntyre the barrel of a rifle and told him to "finish" Gentry off so he could not inform the police. McIntyre then hit Gentry several times on the head with the rifle barrel, and while the victim laid prostrate on the ground, relator and his companions fled the scene. Gentry was subsequently found dead where the assault occurred. The cause of death was determined to be the result of complications from injuries of the head and skull caused by multiple blows with a blunt instrument. Joseph McKnight testified that relator organized the conspirators (of which he was one) to beat up Gentry because Gentry had physically abused relator's sister. Joseph McKnight testified further that relator helped lure Gentry to the scene of the crime, was at the scene of the crime, gave the murder weapon to McIntyre, another co-conspirator, and then fled in Gentry's car after the deed was done. Relator, in a statement given to the police, admitted being part of the conspiracy but claimed that he only went along to make sure Gentry was not hurt badly. Relator in his statement claimed that the motive for the beating was that Gentry owed Joseph McKnight some money and that when he heard Gentry yelling at the scene of the crime, he became nervous and ran away.
As we stated in the Report and Recommendation, "it is clear to us that relator's claim that there was no evidence of his participation as a co-conspirator is frivolous. The fact that relator did not personally inflict the blows does not, under the circumstances, exculpate him from guilt. Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926); Commonwealth v. Murrano, 276 Pa. 239, 120 A. 106 (1923)."
2. Ineffective Assistance of Counsel
In accordance with the Report and Recommendation, this Court held a hearing on November 18, 1973, to consider relator's claim of ineffective assistance of counsel.
Relator contends that he suffered from ineffective assistance of counsel in violation of his constitutional rights in that his trial counsel was inadequately prepared for trial. The controlling standards in evaluating ineffective assistance of counsel claims are set forth in Moore v. United States, 432 F.2d 730 (3d Cir. 1970). There is no question that adequate preparation and adequate performance are relevant considerations in connection with petitions for post-conviction relief.
Relator's claim that he had ineffective assistance of counsel due to inadequate preparation arises from the following facts: Immediately after his arrest, relator's family retained Richard C. Tinucci, Esq. to defend relator. Between relator's arrest and the start of his trial, a period of approximately four and one-half months, Mr. Tinucci had three or four conferences with relator, each lasting one-half hour to an hour. In addition, Mr. Tinucci had represented relator at his preliminary arraignment, preliminary hearing, court arraignment and a suppression hearing. During his visits with relator Mr. Tinucci explained to relator his efforts to obtain a plea bargain with the District Attorney in return for a guilty plea. Although relator indicated that he did not wish to plead guilty, Mr. Tinucci was of the impression that relator wanted him to continue his plea bargaining efforts.
The case came to trial before the Honorable Paul R. Sand, of the Court of Common Pleas of Delaware County, on Monday, March 24, 1969. Prior to selecting a jury, there was a meeting in chambers between Judge Sand, the Assistant District Attorney, relator and Mr. Tinucci. At this meeting, relator indicated that he was dissatisfied with Mr. Tinucci as his counsel. Relator stated that his dissatisfaction stemmed from Mr. Tinucci's suggestion that relator consider pleading guilty. Relator, however, took the position that he wanted to proceed with the trial because he was not guilty of murder. After some discussion, Judge Sand advised relator that a "guilty" plea had to be his voluntary decision and that the trial would proceed on the basis of his "not guilty" plea. Mr. Tinucci stated that he was willing and ready to proceed with the trial. Relator also stated that he was willing to have Mr. Tinucci remain as his counsel. Immediately thereafter, on March 24, 1969, a jury was selected and sworn, and the matter proceeded to trial. The Assistant District Attorney made his opening to the jury at approximately 4:10 P.M. Three witnesses were called, examined and cross-examined, and the Court recessed at 4:35 P.M.
On Tuesday morning, March 25, 1969, the second day of trial, there was another conference in Judge Sand's chambers attended by Judge Sand, the Assistant District Attorney, relator and Mr. Tinucci. Relator again expressed his dissatisfaction with Mr. Tinucci and for the first time requested that Mr. Tinucci be replaced as counsel. Relator expressed a lack of confidence in Mr. Tinucci. Relator stated that he wanted James Cochrane, Esq. to represent him. Judge Sand communicated with Mr. Cochrane concerning the possibility of Mr. Cochrane entering the case as co-counsel for relator. Mr. Cochrane came to Judge Sand's chambers and stated that a prior trial commitment prevented him from coming into the case as co-counsel. Judge Sand then refused relator's request for the removal of Mr. Tinucci and ruled that the trial should proceed with Mr. Tinucci as relator's counsel.
The trial continued at 10:50 A.M., on the second day. The Assistant District Attorney called his fourth witness to the stand. After the luncheon recess and before the testimony of the fourth witness was completed, relator stood up in open court and announced that he did not wish Mr. Tinucci to continue as his counsel. At this point, Judge Sand retired to his chambers accompanied by the Assistant District Attorney, relator and Mr. Tinucci. Mr. Tinucci then asked to withdraw as counsel, but his request was refused by Judge Sand and the testimony of the fourth witness resumed at 2:35 P.M. Later that afternoon, while the fifth Commonwealth witness was under direct examination, a recess was called and Judge Sand again retired to his chambers along with the Assistant District Attorney, relator and Mr. Tinucci, as well as the District Attorney, Stephen J. McEwen. Judge Sand then contacted Edward J. Zetusky, Esq. and requested him to come to his chambers to confer with him, relator and Mr. Tinucci. At about 5:30 P.M. relator indicated that he had spoken with Mr. Zetusky and was satisfied to accept Mr. Zetusky as co-counsel with Mr. Tinucci. Judge Sand then appointed Mr. Zetusky co-counsel with Mr. Tinucci, with the understanding that both were to remain in the case and represent relator. Mr. Zetusky consented to the appointment as co-counsel and relator agreed. Mr. Zetusky at this time requested a continuance. Judge Sand denied the request and stated that the trial would resume at 10:00 A.M. the next morning, March 26, 1969. Prior to continuing with the testimony of the Commonwealth's fifth witness on March 26, 1969, Judge Sand called a conference, attended by all the parties and the following ensued (N.T. 155-59):
THE COURT: Now, despite the fact that there was a very definite agreement and consent to what I did with respect to the appointment of Mr. Zetusky to represent the defendant with Mr. Tinucci, and at the expense of the county, I want to make sure that there has been no change on the part of anyone concerned.
MR. ZETUSKY: After being appointed by your Honor, Mr. Tinucci and I returned to Chester whereupon we reviewed for many hours the case, including the alleged statements given by various people.
I went over the facts completely with Mr. Tinucci. I went into detail with Mr. Tinucci as far as the testimony given already by the Commonwealth witnesses, as far as certain exhibits admitted into evidence.
I feel at the present time I have been brought up to the present status of the case by Mr. Tinucci. I have asked Mr. Tinucci quite honestly as to whether he is aware of all the facts after his investigation, that if I need any additional facts that I may have missed, that he can supply them in a moment's notice. He has advised me he is completely aware of all the facts and can be of valuable assistance. I feel at the present time, after going over the case with Mr. Tinucci and after reviewing various statements, that I feel that I know most of the facts involved in this case, and with Mr. Tinucci assisting me, I think that we can proceed without any difficulty.
THE COURT: Of course, you realize that you are not supplanting Mr. Tinucci; that you are ...