somewhat oblique distinction between capital and non-capital cases in Scoleri now compel a distinction here? Cf. United States ex rel. Stoner v. Myers, 219 F.Supp. 908 (E.D.Pa., 1963).
(c) Does it make a difference that the fact-finder who heard (or read) the allegedly prejudicial references to other offenses was an experienced judge instead of an untutored jury of laymen? On this question, judges themselves seem to differ. Judge Woodside, of the Superior Court, said in Commonwealth v. Berkery, 200 Pa.Super. 626 (1963), at pages 629-630, 190 A.2d 572, at pages 573-574:
'* * * When a judge is hearing a case without a jury, he should try to avoid receiving knowledge concerning the case and the parties which would be denied to a jury, but this is not always possible. In order to rule on the admission of evidence, a trial judge must sometimes obtain information he would not submit to a jury, and this is true when he is trying a case without a jury as well as when he is trying a case with a jury. Judges are human, but they are also specially trained to decide cases on the evidence. They are conscious of the dangers of irrelevant facts and zealously guard themselves against being influenced by any facts not obtained from the evidence. Furthermore, just as it is impossible in some notorious cases to obtain jurors who know nothing of the defendant and the crime, so is it impossible for a judge to be free of all knowledge concerning notorious crimes and defendants. * * *'
In Scoleri, Judge Biggs said, at page 725 of 310 F.2d:
'* * * we cannot believe that the procedural scheme imposed by Section 701 of the Criminal Code of 1939 and the 'Parker Rule' would permit the jurors to put the knowledge of Scoleri's twenty-five convictions or pleas of guilty out of their minds while considering his guilt or innocence. Certainly such a feat of psychological wizardry verges on the impossible even for berobed judges. * * *'
This latter, however, was clearly dictum, for Scoleri was tried to a jury. Will a federal court, when squarely presented with the problem, eschew commendable modesty and grant that a judge who can (allegedly) cast aside irrelevancies in the solution of legal questions is equally able to do so in the solution of factual questions?
I am convinced that the state courts of Pennsylvania have not had an opportunity to review and pass upon the constitutional impact of these substantive questions. The alleged error was presented to the Superior Court in the narrow framework of an ordinary motion for a new trial; its constitutional context was never delineated. Under this circumstance, the denial of the petition for allocatur adds nothing to relator's petition. It does not mean that the Supreme Court passed upon the constitutional questions raised there for the first time. In Clarion Borough Petition, 275 Pa. 175, 176, 118 A. 765 (1922), the entire per curiam opinion of the court said:
'This is an appeal from the Superior Court, allowed because a constitutional question was alleged to be involved; but the record shows no such point presented to that tribunal. Neither the statement of questions involved, the assignments of error in, nor the opinion of, the Superior Court, mentions, or indicates, a constitutional point. Under such circumstances, appellants have no standing to be heard in this court. Chartiers Creek Bridge, 235 Pa. 365, 84 Atl. 351.
'The appeal is dismissed, at the cost of appellants.'
That is this case.
I have adverted to the unresolved substantive question that I am able to discern here solely for the purpose of indicating that Berkery's claim of constitutional infringement is not clearly without merit. United States ex rel. Drew v. Myers, 327 F.2d 174 (C.A.3, 1964). This is no indication of any belief on my part that his claim does or does not have final merit. It means merely that the questions exist, but that I restrain myself at this juncture from deciding them. 'The reason for this restraint lies in the belief that the federal courts would avoid 'Unseemly collisions' by allowing the state courts first opportunity to review alleged state abuses of federal constitutional rights.' United States ex rel. Drew v. Myers, 174 F.2d 327 (C.A.3, 1964).
The state courts have not yet had that opportunity here. It follows that state remedies have not been exhausted and the petition, on that ground,
must be denied.