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September 6, 1977


The opinion of the court was delivered by: LUONGO

 Before me for approval is the Report and Recommendation*of the United States Magistrate that relator be granted a writ of habeas corpus (28 U.S.C. § 2241 et seq.). Certain issues were disposed of by order prior to hearing and the only issues remaining in this case are whether relator is precluded from obtaining habeas corpus relief because he failed to appeal his state court conviction and, if he is not so precluded, whether he was denied effective assistance of counsel at trial because his attorney did not object to a Commonwealth witness' testimony that relator remained silent at the time of arrest.

 Relator was convicted of prison breach (18 P.S. § 4309, repealed, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 5(a)) after a jury trial in the Court of Common Pleas of Lancaster County, Pennsylvania, on January 9, 1973. A brief description of the trial is necessary for a full understanding of relator's claims.

 The Commonwealth called only two witnesses. The first was Robert Steffy, a Lancaster County Prison guard, who testified that relator was incarcerated at that prison on June 29, 1971 *fn1" and that early that evening relator, suffering from a broken leg, was brought into the prison from outside of it by two other men. Steffy stated that to his knowledge relator had not had permission to leave the confines of the prison. At the end of direct examination, the prosecution elicited the following testimony:

"Q. When you claimed him [relator] at the front door did he make any statements to you?
Q. Did he make a reply to that question?
A. No, he would not make a reply to it."
Trial Transcript, Commonwealth v. Boyer, No. 723, 1972 Term (C.P. Lancaster, Crim. Div.) [hereinafter cited as Trial Tr.] at 6-7.

 Relator's trial counsel did not object to those questions. On cross-examination Steffy repeated that he saw relator brought into prison from outside of it and added that relator was just one of twelve inmates who had broken out of prison that evening. The Commonwealth's second witness, Deputy Warden Stork, testified that a headcount conducted by him on June 29, 1971, showed that twelve prisoners were missing that evening.

 Relator's defense was insanity. Defense counsel called the Deputy Clerk of the Court of Common Pleas, William C. Wagner, who testified that there was a March 17, 1971 docket entry stating that on that date relator's father petitioned the court to commit relator as mentally disabled, that the court directed that relator be examined by two licensed physicians, and that the court made no further disposition of the petition. The only other defense witness was relator himself. Relator testified that he was an "extensive drug user" before entering Lancaster County Prison on February 25, 1971, and that he "was going through a psychological withdrawal" while at the prison. Trial Tr. at 18. He characterized his mental condition as "paranoid schizophrenic" (id. at 19) and said that he "was in a very, very depressed mood" because he was "continuously being locked up," beaten by prison guards, and placed in a strip cell called the "bull pen" (id. at 20-21). On the evening of June 29, relator saw other inmates "leaving through the shower room" and he followed them, ending up on the prison wall. Id. at 21. He stated that he did not know what happened next, except that he ended up on the ground with a broken leg. He "realized then that [he] was doing something wrong," and, through a friend who he encountered, he "sent for aid to take [him] to the prison." Id. at 22. He was returned to prison by his brothers, who lived nearby. Id. Relator insisted that he did not intend to breach prison, but acted as he did because of his distraught mental state. Id. at 23.

 In his charge, the trial judge explained to the jury the elements of prison breach. He then summarized the testimony of each of the witnesses, including Steffy's testimony that, when brought into the prison, relator did not reply when asked "how he got outside" the prison. Trial Tr. at 32. The judge summarized the defendant (relator)'s case as follows:

"It is the contention of the defendant that he did no [sic] intentionally break prison. It is his contention that if he was outside the prison, he was not there because he intended to breach prison or escape."
Id. at 35.

 The judge added that relator was asserting the defense of insanity and instructed the jury as to the legal meaning of that term, noting that relator had "the burden of proving an insanity defense by a fair preponderance of the evidence." Id. at 36. Defense counsel did not object to the charge. After deliberating for forty minutes, the jury returned a verdict of guilty.

 Immediately after trial, relator was sentenced to pay a fine and to imprisonment, with the prison term to be served after relator finished serving another prison term imposed in another case. Relator is still in custody pursuant to the sentence.

 Following sentencing, the judge informed relator of his right to appeal:

"THE COURT: * * *
Mr. Boyer, I have to inform you of your right to take an appeal from this judgment of sentence to the Superior Court within thirty days, that is your right. And if you don't have counsel or can't afford counsel, counsel will be furnished free of charge. You understand that to be your rights?

 Relator did not appeal.

 On January 4, 1974, relator filed a petition for relief under the Pennsylvania Post Conviction Hearing Act (PCHA), 19 P.S. §§ 1180-1 et seq. A hearing was held in the Court of Common Pleas on April 23, 1974 at which relator and his prison breach trial counsel were the only witnesses. The hearing dealt primarily with the attorney's presentation of relator's insanity defense, but at one point the attorney was questioned about his failure to object to Steffy's reference to relator's silence at the time of arrest:

"Q. This kind of testimony might well be objectionable, might it not?
A. Yes, sir.
Q. Is there any reason why you did not object to that ...

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