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May 19, 1967

UNITED STATES of America ex rel. George L. SPEARS
Alfred T. RUNDLE, Superintendent, State Correctional Institution, Graterford, Pennsylvania

The opinion of the court was delivered by: LORD, JR.

 JOHN W. LORD, Jr., District Judge.

 The petition is concerned with two separate convictions, based on indictments charging relator with aggravated robbery. Relator waived jury trials on both indictments and the two trials were held within a short time of each other. Spears was sentenced for both on the same day. Because of the different problems involved with each conviction, we will consider them separately.

 Preliminary to a discussion of the merits of the petition, we must dispose of two jurisdictional matters. Relator has exhausted his state remedies, 28 U.S.C.A. § 2254, by appeal to the Superior and Supreme Courts of Pennsylvania, on both convictions challenged here. The appeals were unsuccessful. The question has also presented itself as to the nature of relator's custody. It is clear that the writ is not available to test the legality of detention threatened in the future. Palumbo v. State of New Jersey, 334 F.2d 524, 526 (3rd Cir. 1964). Relator is presently serving the unexpired portion of a previous sentence imposed for a crime not included in this petition. He was paroled however and would have fulfilled the term of that sentence while on parole, but for the convictions on the two crimes forming the basis for this petition. Upon being convicted, relator was ordered to serve his "back-time" on the previous sentence before he would begin to serve the sentences for the present crimes. The convictions are a violation of parole, and therefore the cause of his present detention. 61 P.S. § 331.21a. Since relator's present custody was caused by the convictions which he alleges were unconstitutionally obtained, the writ can issue. Ex Parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1940); United States of America ex rel. Gaito v. Maroney, 324 F.2d 673 (3rd Cir. 1963). The merits of the issuance of the writ may now properly be considered.


 Relator was brought to trial in April, 1964 on indictment No. 1549 charging the aggravated robbery of a savings association. He was represented by counsel (whom he claims was ineffective) and jury trial was waived. The Commonwealth's first witness was the victim of the robbery, a teller at the savings association, who identified Spears and two other defendants as the robbers. The next witness was a police officer who read into evidence an incriminating statement made by the relator. No objection to the confession was made at this time. The Commonwealth then rested. Spears took the witness stand in his own behalf and testified that he was ill and had remained in his room from December 16, 1963 to January 3, 1964, and therefore could not have committed the robbery which took place on December 23, 1963. Spears contended that three witnesses, including his parole officer, could testify that he was so confined during this time. These witnesses were never called, although it seems that some effort was made to find them. Spears then testified that the statement which he signed was not a transcription of any question and answer period he had with the police. He claimed that it was already prepared by the police who had been looking for him prior to his arrest. When he learned that he was the subject of police inquiry he went to his apartment where he was living with a friend named Brown, and a woman. The woman told him that the police had been to the apartment looking for him shortly before his arrival. The police allegedly ransacked the apartment and finally left, taking Brown in custody and telling the woman that they would keep Brown in custody until Spears surrendered himself. Spears went directly to the police station where he was placed under arrest. He was asked to sign the statement, which he insists was already prepared, containing a narrative of the robbery and implicating two other defendants. He testified that he denied commission of any crime but was intimidated into signing the statement. At this point in the trial, the following colloquy took place:

"MR. ROSENWALD (District attorney): If your Honor pleases, he is not testifying. He is doing the work of his attorney. He is arguing the case.
My attorney, sir, has not had over ten hours to know about this case. I am being tried.
"THE COURT: We are going to try this case as the law provides. We cannot go on and on like a babbling brook.
"THE DEFENDANT: I consider what I'm saying has pertinence to the case.
"THE COURT: We are not going to argue with you. You will tell whether you were there, whether you were not there, whether you did it or whether you did not do it." (N.T. 4/21/64, pp. 67, 68)

 The record contains no further reference to this question of the voluntariness of the confession. There was no ruling by the court. ...

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