decided: August 24, 1948.
UNITED STATES EX REL. HARRY COLLINS, APPELLANT,
STANLEY P. ASHE.
Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
Upon the present record neither this court nor the court below can ascertain whether or not the petitioner exhausted his State remedy in the habeas corpus proceeding which he instituted in the Court of Common Pleas of Allegheny County. See Commonwealth ex rel. Collins v. Ashe, 159 Pa.Super. 553, 49 A.2d 265. The criteria for such a determination have recently been set forth by us in the opinion filed in Application of Baer, 3 Cir., 1948, 169 F.2d 770. If, upon reconsideration, the court is of the opinion that the petitioner has exhausted his State remedy the court should proceed to consider the merits of the petitioner's application under the law of Pennsylvania as exemplified in Commonwealth ex rel. Arnold v. Ashe, 156 Pa.Super. 451, 40 A.2d 875.
The order appealed from will be vacated and the cause will be remanded to the end that the court below may supplement the record by receiving such further evidence as may be necessary and to dispose of the case as the facts and the law may require.
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