APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-166).
Aldisert, Gibbons and Higginbotham, Circuit Judges.
Robert Boyer appeals from the district court's denial of his petition for habeas corpus relief, submitted on the ground that during his state trial for the crime of prison breach, his trial counsel was ineffective in failing to object to testimony elicited from a government witness regarding Boyer's silence at the time of his arrest. Boyer is now represented by different counsel. The district court declined to accept a United States Magistrate's recommendation that Boyer be granted the writ, finding instead that even if Boyer did not waive his rights by failing to appeal and even assuming his counsel's representation fell below the prevailing standard of adequacy, no harm resulted and Boyer was not entitled to habeas corpus relief. 436 F. Supp. 881 (E.D. Pa. 1977). Although we find merit in the district court's thoughtful analysis of these legal issues, we reverse.
Appellant Boyer was tried and convicted in the Court of Common Pleas of Lancaster County, Pennsylvania, in 1973. Commonwealth v. Boyer, No. 723, 1972 Term (C.P. Lancaster, Crim. Div.). At trial, during which Boyer pleaded a defense of insanity, the prosecution elicited the following testimony from prison guard Robert Steffy:
Q. When you claimed [Boyer] at the front door did he make any statements to you?
A. Not more than I asked him how he got outside.
Q. Did he make a reply to that question?
A. No, he would not make a reply to it.
Id., Trial Transcript at 6-7. Boyer's trial counsel did not object to admission of this testimony. In his charge to the jury, the trial judge summarized the guard's testimony as follows: "As the prisoner [Boyer] was being brought in, this witness said he asked him how he got outside and he said the prisoner did not reply." Id. at 32. Again, counsel did not take exception.
No direct appeal was taken from the judgment of sentence.*fn1 Boyer's subsequent petition under the Pennsylvania Post-Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq., was denied. During the hearing on this petition, Boyer's trial counsel agreed that the reference to Boyer's silence "might well be objectionable", and testified ...