No. 1664. Relator entered a plea of not guilty to this second charge and was convicted and sentenced after a full trial before the Hon. Joseph D. Burke, sitting without a jury. No appeal was taken from either sentence.
In 1962, relator filed a petition for a writ of habeas corpus in the Court of Common Pleas, alleging that his conviction on Bill No. 1664 was invalid because it was based on evidence obtained by illegal search and seizure, which petition was denied without a hearing. The Superior Court denied an appeal from the denial of the writ in the lower court on April 18, 1963. Commonwealth ex rel. Bowers v. Rundle, 200 Pa.Super. 496, 189 A.2d 910 (1963). A petition for allowance of appeal was denied per curiam by the Supreme Court of Pennsylvania on June 26, 1963. 200 Pa.Super. xxx (see No. 184 Allocatur Docket No. 4 and No. 60, October Term 1963). A petition for a writ of certiorari to the Supreme Court of the United States was also denied. 375 U.S. 916, 84 S. Ct. 215, 11 L. Ed. 2d 154 (1963).
The questions presented by relator's petition for a writ of habeas corpus in this court are outlined as follows:
I. Illegal Search and Seizure
Relator claims that he first made a motion to suppress the evidence obtained by the allegedly illegal search and seizure at a preliminary hearing before a Magistrate on March 13, 1962, which motion the Magistrate denied. Relator was at that stage represented by counsel of his own choosing. However, because of lack of funds, he was represented at his trial by counsel from the Voluntary Defender Association. Relator claims that despite his insistence that the issue be raised, his trial counsel refused to argue or refile the motion to suppress at his trial, claiming "it was not fitting" (second paragraph on page 5 of Document 1).
On this issue, the Pennsylvania courts took the position that relator was precluded from raising on collateral attack a point which should have been raised at his trial or on direct appeal, citing cases such as Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963); Commonwealth ex rel. Coffman v. Keenan, 198 Pa.Super. 80, 182 A.2d 288 (1962); Commonwealth ex rel. Stoner v. Myers, 199 Pa.Super. 341, 185 A.2d 806 (1962); Commonwealth ex rel. Clark v. Maroney, 199 Pa.Super. 552, 186 A.2d 422 (1962); cf. Com. ex rel. Craig v. Maroney, 6/30/65, 348 F.2d 22 (3d Cir). The state courts do not consider the fact that in a case such as this a motion to suppress has been made at the preliminary hearing significant enough to make an exception to the well-established rule stated in the above-cited cases. See Commonwealth v. Clark, 198 Pa.Super. 64, 181 A.2d 859 (1962); Commonwealth v. Puntari, 198 Pa.Super. 70, 181 A.2d 719 (1962); Commonwealth v. Mancini, 198 Pa.Super. 642, 184 A.2d 279 (1962).
The question of the applicable federal law in the instant case presents a more difficult problem, on which there is little authority. The offenses for which relator was convicted, and his indictment and trial, all occurred after the decision of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The Mapp case was a direct appeal from a conviction, not a collateral attack. Commenting on the effect of their decision, the majority acknowledges that in some cases the exclusionary rule formulated in their decision might have the result that admitted criminals will go free because of the blunders of law enforcement officers.
However, in a footnote to that statement, the court qualifies it as follows:
"As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected." (footnote 9, p. 659, 81 S. Ct. p. 1693)