Winter,*fn* Aldisert and Gibbons, Circuit Judges.
On a claim that his conviction of rape violated the constitutional guarantee against double jeopardy because he had previously been convicted of open lewdness, petitioner seeks to have us direct that he be awarded a writ of habeas corpus. The writ was denied by the district judge, and this appeal ensued. We affirm.
On July 14, 1966, a police officer responded to a call from an apartment house address in Philadelphia. On arrival he found nothing amiss, but as he left he was furnished with additional information from some bystanders, and he returned to investigate further. Upon his return he discovered petitioner in an open stairwell with his genitals exposed and with his hand around the neck of a young girl. Petitioner lived at that address in an apartment adjacent to the stairwell. Petitioner fled and the officer gave chase. The officer did not apprehend petitioner, and when he returned to the scene the young girl had left the stairwell and could not be found.
Petitioner was arrested later in the day. Based upon the officer's observations, petitioner was charged with indecent exposure and open lewdness, resisting arrest and loitering and prowling. He was tried September 15, 1966, and, on the testimony of the officer, he was convicted of open lewdness and resisting arrest.
Sometime after July 14, 1966 (the exact date is not disclosed by the record), the young girl was identified and located by the police through the intervention of her mother. As a result of her statement, petitioner was indicted at the October Sessions, 1966, for rape, sodomy, and conspiracy. He was tried on July 6, 1967, and convicted of rape, as well as other offenses against other persons. The rape conviction was obtained on the testimony of the young girl and her female companion, as well as on the testimony of the officer. The conviction for rape was appealed and affirmed per curiam on May 10, 1968; the Supreme Court of Pennsylvania denied further review.
On January 1, 1969, a motion for new trial, filed immediately after the conviction for open lewdness and before the indictment for rape was returned, was granted. The Commonwealth immediately nolle prossed it.
At his trial for rape, in the appeal to the Superior Court, in the petition for allowance of a further appeal to the Supreme Court of Pennsylvania and before the district judge, petitioner asserted the invalidity of the rape conviction on the basis of the Act of March 31, 1860, P.L. 427, § 51, 19 P.S. § 831,*fn1 rather than upon constitutional grounds. The contention was repeatedly rejected. The only disclosure of the basis for the ruling in the record before us is that of the district judge, who stated that "this Court is bound by Commonwealth v. Ray, 177 Pa.Super. 154, 110 A.2d 764 (1955), which held that the statute meant only to prohibit a subsequent prosecution for a lesser offense or a greater offense which included the lesser." Although constitutional grounds for the result petitioner contends should be achieved have not been previously asserted, the constitutional argument is so similar to the statutory argument previously asserted that we conclude that petitioner has exhausted available state remedies. 28 U.S.C.A. § 2254(b). See Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
The Fifth Amendment guarantee that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb" has been held to extend to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The rule announced in Benton has been held to be fully retroactive. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). If otherwise applicable, the guarantee is fully available to petitioner in this case.
A claim of double jeopardy usually arises in the context of an accused's being sought to be tried a second time on the identical charge of which he had been previously acquitted. An example is Benton, where the defendant was initially tried for larceny and burglary. He was acquitted of larceny, and his conviction of burglary was reversed on appeal. He was awarded a new trial but the court directed that the new trial be on both charges. The Supreme Court held, however, that retrial and conviction of the larceny charge were barred by the constitutional guarantee.
As a rule of federal law the guarantee against double jeopardy is broader in scope than the usual case which Benton illustrates. Because it was held in Ashe v. Swenson, supra, that the federal rule of collateral estoppel in criminal cases is also applicable to the states, the guarantee can now be said to extend to lesser included offenses and to related offenses under certain circumstances. See also Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (1970). The doctrine of collateral estoppel was defined to mean "simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future law suit." Ashe v. Swenson, 397 U.S. at 443, 90 S. Ct. at 1194. At the same time, it was stated that "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." 397 U.S. at 444, 90 S. Ct. at 1194. Following its own admonition, the Court held that the accused could not be prosecuted a second time for armed robbery of a certain Roberts, one of several persons engaged in a poker game, when it ...