The opinion of the court was delivered by: VAN DUSEN
This case is before the court on a Second Amended Petition for Writ of Habeas Corpus (Document 14). Relator, Milton Bowers, is presently incarcerated in the State Correctional Institution, Philadelphia, Pa. On June 13, 1962, relator received the following sentences:
(A) On Bill No. 1075 (May Term 1962, Court of Quarter Sessions, Philadelphia, Pa.), 2 1/2 to 5 years for burglary and larceny, effective from May 8, 1962;
(B) On Bill No. 1664 (March Term 1962, Court of Quarter Sessions, Philadelphia, Pa.), 2 1/2 to 5 years for burglary and larceny, to begin at the expiration of the sentence on Bill No. 1075.
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)
Thus, it appears that in a case such as the one now before the court, the Supreme Court intended that state rules regarding the availability of collateral remedies should govern. The abovequoted language has not been repudiated by the Supreme Court in any of the cases following Mapp, supra. Research has not disclosed any case in the Supreme Court dealing squarely with the issue of the application of Mapp to post-Mapp proceedings challenged on collateral attack where the applicability of Mapp was not raised at trial.
There is no Third Circuit case clearly on point. In cases such as Green v. Yeager, 223 F. Supp. 544 (1963), aff'd 332 F.2d 794 (3rd Cir. 1964), and United States ex rel. Mancini v. Rundle, D.C., 219 F. Supp. 549 (1963), the courts made a point of stating reasons justifying their consideration of the question of illegal search and seizure on habeas corpus, even though it was not raised at trial, which reasons are not applicable to this record. There is, however, post-Mapp authority in other Circuits barring the raising of illegal search and ...