Before McLAUGHLIN and FORMAN, Circuit Judges, and COOLAHAN, District Judge.
COOLAHAN, District Judge.
The appellant was convicted by a jury in the Court of Oyer and Terminer and General Jail Delivery of Adams County, Pennsylvania on a charge of burglary and larceny on February 12, 1960. He was sentenced to imprisonment for a term of 2 1/2 to not more than 5 years. Said sentence was to commence at the expiration of a prior sentence of 2 to 4 years then being served by him upon his plea of guilty to attempted burglary, possession of burglar tools and carrying concealed deadly weapons, in Bedford County, Pennsylvania.
It would be well at this time to chronologically list the facts leading to the aforementioned sentences before discussing the proceedings before this Court.
The appellant appears here in forma pauperis and this Court has secured and reviewed all of the documents and records of the Adams County Court, Pennsylvania and its Court of Oyer and Terminer and General Jail Delivery, together with the documents, records and transcript of the testimony before the United States District Court for the Middle District of Pennsylvania.
From these records it appears that on the night of June 25-26, 1958 the building and offices of the Gettysburg Furniture Company, Gettysburg, Adams County, Pennsylvania, was broken into. A large vault on the second floor of the building was entered; and a 200 lb. safe, allegedly valued at $50.00, together with $84.00 in currency, a Zeiss-Ikon Contax No. 2, 35 Millimeter Camera of the estimated value of $500.00 and a Weston Light Meter, Model 735, Serial #6264416, valued at $25.00 were stolen.
On April 11, 1959 at about 1:00 A.M., the petitioner was arrested by the Bedford police while attempting to enter a Bedford building. He was found to be in possession of certain burglar tools and an unlicensed loaded 25 calibre automatic revolver. When interviewed by the police he stated he had hitch-hiked into Bedford with some unknown truck driver.
Upon being searched by the Bedford Police in connection with the occurrence, a set of keys was found attached to a key ring plate bearing a Maryland automobile license number. Though Weller denied driving into Bedford, upon investigation the police found a car in and about the area where he was arrested bearing the license number on the key ring plate. Finally the appellant admitted he drove into Bedford, but stated the car was his wife's and that she was also the owner of the revolver. A search was made of the automobile and the keys found on the appellant fitted the doors and the trunk of the car. In the trunk the police discovered a large collection of tools, gas mask, special goggles, five pairs of white cloth gloves, a box of ammunition which fitted the revolver, and a specially taped flashlight. Among the articles found was an instrument described by the police as a knob puller, which the appellant describes as a gear puller. The finding of the knob or gear puller focused suspicion upon the appellant with respect to the Gettysburg Furniture burglary of June 25-26, 1958. The Pennsylvania State Police were notified and comparisons were made between the knob or gear puller and the markings on the large vault door and knob. The police officers investigating the Gettysburg robbery had taken actual or life size photographs of the vault door, had retained the damaged pulled knob, and caused the markings on the vault door to be preserved until comparisons were established. The markings on the door fitted exactly with the knob or gear puller. A complaint and warrant was filed against the appellant for the Gettysburg burglary on April 30, 1959.
Subsequent thereto the Pennsylvania State Police obtained the assistance of Sgt. Grayson L. Wigfield of the Hagerstown, Maryland Police Department in applying for a search warrant*fn1 to search the defendant's home. The warrant was obtained and according to the testimony of Sgt. Wigfield, the same was executed on May 11, 1959 at 4:00 P.M. Eastern Standard Time, 5:00 P.M. Daylight Saving Time.
Sgt. Wigfield testified, (Tr.P.33) that he and the other police officers went to the home of the appellant while it was still daylight, knocked on the front door and the appellant's wife answered. Sgt. Wigfield testified that he knew Mrs. Weller and she knew him. He stated he told her he had a warrant to search the premises. The police officers were invited in to the living room where Sgt. Wigfield explained their purpose and read the application for the search warrant and the search warrant to her. He made inquiry as to whether or not the two articles mentioned in the warrant were in the house and stated that if she would produce them no search would be made. She told the police it was useless for them to make a search, for the articles mentioned were not in the house since her husband had been in the hospital at the time the Gettysburg Furniture Company was burglarized.
Testimony further indicated that after the warrant had been read to her she asked to read it herself, and that she did read the papers, including the affidavit for the search warrant. She then asked if she could call her attorney before a search was made. She telephoned her attorney, William E. Krehkenbaum, and when she returned to Sgt. Wigfield she said her attorney informed her she would have to allow the search. (Tr.P.34). A search was made of the premises and eventually the camera and the light meter were found.
The articles seized were brought before the Magistrate as required by the warrant and Mrs. Weller was requested to appear on May 21st in the Magistrate's Court in Hagerstown. She was charged with receiving stolen property and was defended by her attorney, William E. Krehkenbaum. The charge was dismissed.
On August 17, 1959 the appellant was indicted by the Adams County Grand Jury and charged with the offenses of burglary and larceny occurring in Gettysburg on the night of June 25-26, 1958. On November 15, 1959 the appellant addressed a communication to the presiding Judge of the Court in Pennsylvania requesting an early trial. On November 21, 1959 the presiding Judge informed the appellant that no jury would be sitting in the County before February, 1960 and therefore he could not have a trial before that date unless he decided to plead guilty or be tried without a jury. In either event an earlier date could be arranged.
On February 3, 1960 the District Attorney of Adams County filed a petition with the Court wherein he stated that he was prepared to proceed with the trial during the February term inasmuch as the appellant and his wife had requested him to proceed with the disposition of the charges. By way of petition he requested an order to be issued upon the Warden of the State Correctional Institution at Rockview, where the appellant was serving a term for other offenses, to release the appellant so that he could stand trial.
The appellant requested the appointment of an attorney to defend him on the Adams County charges. Some dispute exists as to when the attorney was appointed. The appellant states in his affidavit for a writ of habeas corpus, P. 3 to the supplement thereof, "Court appointed counsel met petitioner for the first time at 7:30 P.M. the night before the trial, for one hour." The trial was held on February 11, 1960, but we find in the records before this Court that on February 10, 1960 at 1:30 P.M. his attorney filed in the Office of the Clerk of the Court a petition seeking the issuance of subpoenas for the attendance at the appellant's trial of witnesses who resided in Maryland. The subpoenas were issued, the witnesses appeared and testified, and this appellant stated before Judge Follmer (Tr.P.25) that it was he who gave the names of the witnesses he wished subpoenaed to his attorney.
On February 12, 1960 the appellant was found guilty by a jury and was sentenced to no less than 2 1/2 nor more than 5 years, commencing at the end of the Bedford County sentence which he was then serving, having pleaded guilty to the offenses previously mentioned.
At the trial, it is alleged by the District Attorney of Adams County, no issue concerning an unlawful search and seizure was raised. The camera and the light meter with the identical numbers to the ones which were stolen from the Gettysburg Furniture Company and which were later found in the appellant's home in Hagerstown, Md., were introduced into evidence, together with the knob puller (Tr.P.4).
On July 1, 1961 the appellant filed an action in forma pauperis, only seeking certified copies of all Court records in this matter at the cost of the County, together with all records and the notes of the testimony.
On July 8, 1961, Judge Sheely, the Presiding Justice of the Court of Oyer and Terminer and General Jail Delivery of Adams County, Pennsylvania, indicated that no certified copy of any preliminary hearing notes or testimony could be furnished because no preliminary hearing was had. Appellant was further advised that a certified copy of the Maryland search warrant could not be furnished because that document was in the hands of the Maryland authorities, nor was the appellant entitled to a copy of the testimony by reason of his failure to request same within ninety days after the verdict as per 17 P.S. § 1802. Judge Sheely stated that all of the other records could be obtained by petitioner upon application to the Clerk.
The appellant never made application for a new trial, took no appeal from his conviction, and sought no further relief in the State Courts. He defends this upon the theory that he was without funds to pursue either an application for a new trial or an appeal.
On August 29, 1961 he filed a petition for a Writ of Habeas Corpus with the United States District Court for the Middle District of Pennsylvania. In pursuance of this application Judge Follmer appointed counsel for the appellant. In his petition he alleged "approximately 10 months prior to this trial (the trial in Adams County, Penn.) agents of the Pennsylvania State Police crossed into Maryland to relator's home town of Hagerstown, and together with police officers of that city, unlawfully entered and searched his home without affidavit of probable cause or without a search warrant and seized a camera and a light meter purported to have been stolen a year previously in Pennsylvania."
Upon examination, in the proceedings before Judge Follmer, the following questions were addressed to the appellant (Tr.P.10):
"Q. Just what is the basis of your complaint? Is it the use of an item illegally seized?
"A. A camera and light meter.
"Q. Are you complaining for any other cause or because the camera and light meter was seized without warrant?
"A. That is the main issue.
THE COURT: What other issue do ...