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May 10, 1968

UNITED STATES of America ex rel. Samuel RICHARDS
A. T. RUNDLE, Superintendent

The opinion of the court was delivered by: BODY

 BODY, District Judge.

 Relator was indicted by the Philadelphia Grand Jury as of November Term, 1960, Bills of Indictment Nos. 1403, charging felonious possession of drugs, and 1404 charging assault and battery and resisting arrest. On September 6, 1961, the Honorable Bernard J. Kelley, sitting without a jury in the Court of Quarter Sessions, Philadelphia, Pennsylvania, found relator guilty on both bills and deferred sentence. These convictions were secured after the court had denied relator's motion to suppress certain evidence as having been allegedly obtained in violation of relator's Federal Constitutional rights.

 On November 27, 1961 Judge Kelley entered an Order granting relator's Motion in Arrest of Judgment solely on the ground that the evidence admitted at his trial had been unconstitutionally seized. The Commonwealth appealed from this Order and the Superior Court of Pennsylvania reversed Judge Kelley's decision and affirmed relator's conviction. Commonwealth v. Richards, 198 Pa.Super. 39, 182 A.2d 291 (1962). Relator's Petition for Allocatur was denied by the Pennsylvania Supreme Court, Nos. 80 and 81 October Term, 1962, No. 107 Allocatur Docket No. 4, and certiorari was denied to the United States Supreme Court. Richards v. Pennsylvania, 373 U.S. 376, 83 S. Ct. 1313, 10 L. Ed. 2d 420 (1962).

 On June 7, 1963 relator was sentenced by the Court of Quarter Sessions, Philadelphia, Pennsylvania, on Bill No. 1403, to serve a term of two to five years at the State Correctional Institution in Philadelphia. *fn1"

 Relator subsequently filed with this Court a Petition for a Writ of Habeas Corpus (M-2397), which petition was denied without prejudice on March 10, 1965 for his failure to exhaust state remedies. Relator thereupon returned to the state courts and collaterally attacked his conviction and sentence by way of a Petition for a Writ of Habeas Corpus which he filed in the Philadelphia Court of Common Pleas as No. 5950 March Term, 1965. The petition was dismissed by the Honorable Charles L. Guerin on June 7, 1965. The Pennsylvania Superior Court affirmed per curiam the appealed Order. Commonwealth ex rel. Richards v. Rundle, 207 Pa.Super. 738, 216 A.2d 100 (1965). Relator's Petition for Allocatur was denied by the Supreme Court of Pennsylvania as of No. 313-A, Misc. Docket No. 14, by Order entered March 11, 1966.

 Relator testified at his federal habeas corpus hearing regarding the facts surrounding his arrest and conviction. The Commonwealth offered no testimony and relied upon the complete state court record which was introduced and received into evidence as Commonwealth's Exhibit No. 1. It is the Commonwealth's position that the case sub judice presents this Court with a legal question only, and one involving the application of Federal Constitutional standards of search and seizure to the facts as already determined by the state courts. We agree with the Commonwealth's characterization of the issues before us.

 The relevant facts giving rise to the legal questions at issue, which are found in the state court record and which differ only slightly from the version relator gave at his federal hearing, are set forth below.

 On November 2, 1961, at approximately 4:45 P.M., three Philadelphia police officers, assigned to the Special Investigation Squad on narcotics, met a police informer at Fortieth Street and Girard Avenue. This particular informer had been giving the authorities information concerning sellers of narcotics for two years and his tips had proven reliable in the past, resulting in about ten arrests. The informer told the police officers that relator was at that moment illegally in possession of narcotics in his second-floor apartment located at 3905 Poplar Street, a distance of two blocks from this meeting place. In addition, the informer advised the officers that relator was planning to leave, thus necessitating immediate action on their part.

 The officers, accompanied by the informer, promptly proceeded to 3905 Poplar Street at which time the informer pointed out the dwelling in which the relator's apartment was located. The officers did not obtain a search warrant for relator's apartment. While one of the officers remained outside, the other two rang the doorbell and were admitted into the common hallway by the first floor tenant. The same two policemen advanced up the stairway leading to the second-floor apartment at the top of which was relator's private apartment. It is important to note that no door existed at the foot of these stairs; the stairway to the second floor began at the end of the common hallway to which the officers were admitted entrance.

 Upon reaching the top of the stairs, the officers were met by relator, who had stepped outside of his apartment and who, without warning, shoved one of the officers against the wall. At this point the officer identified himself and informed relator that he was under arrest. Relator then shouted, "They're here", and the arresting officer immediately heard someone running inside the apartment. It was later determined that this person was one of two men in relator's apartment at the time, and was leaving the kitchen in haste. Since the kitchen door was locked, the arresting officer forced it open just in time to see a man diving, head first, through the kitchen window with a brown paper bag in his hand.

 Both at his trial and at his federal habeas corpus hearing, relator denied having shoved the arresting officer at the top of the stairs. In his present petition, however, he attacks only his conviction on Bill of Indictment No. 1403 for felonious possession of drugs. Futhermore, the trial judge clearly disbelieved relator's version of the incident on the staircase. This is evident from his Opinion in which he granted relator's Motion in Arrest of Judgment wherein he stated that the police officers, in his view, had no legal right to enter the building at 3905 Poplar Street and that, therefore, both convictions must be set aside. In fact, Judge Kelley assumed that relator pushed the officer since he stated in his Opinion that relator had the right to resist an unlawful arrest and an unconstitutional search and seizure, provided that only reasonable force was used. Based on a review of the entire ...

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