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UNITED STATES EX REL. SPEARS v. JOHNSON

June 15, 1971

UNITED STATES of America ex rel. George L. SPEARS
v.
Robert L. JOHNSON, Supt.


John W. Lord, Jr., Chief Judge.


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

JOHN W. LORD, JR., Chief Judge.

 Relator, who is presently incarcerated in the State Correctional Institution at Graterford, Pennsylvania, has filed a petition for a writ of habeas corpus, in which he attacks his conviction for aggravated robbery on Bill of Indictment #1549, Feb. Term, 1964, Philadelphia County. Relator was tried and convicted before a judge sitting without a jury and sentenced to 7 1/2 to 20 years.

 Initially, relator filed a petition (Civil Action No. 70-2838) with this Court in October, 1970. The Commonwealth's answer to the Court's show cause order indicated that relator's allegations were under consideration by the state courts. On March 18, 1971, this Court dismissed without prejudice relator's petition for failure to exhaust his state court remedies as provided by 28 U.S.C.A. § 2254(b). This Court also noted that relator's appeal had been denied by the Superior Court of Pennsylvania on September 18, 1970. Due to the length of this delay, we ruled that if the Supreme Court did not enter a decision within 90 days, relator could resubmit his petition. On May 3, 1971, relator forwarded a letter to this Court with a copy of a notice from the Supreme Court of Pennsylvania advising relator that his petition for allocatur had been denied. Relator, therefore, requested that he be permitted to refile his petition.

 On May 11, 1971, the Defender Association of Philadelphia resubmitted relator's original habeas corpus petition and accompanied it with an extensive brief. This petition, which raises many of the same issues as relator's first petition, was assigned Civil Action No. 71-1129. Since the Supreme Court of Pennsylvania rendered a decision within the 90 days, the Court will deny relator's request to resubmit petition numbered 70-2838. Instead, the Court will consider the petition, No. 71-1129, which was submitted through the Defender Association.

 Relator's first contention is that he was denied due process when the Court found him guilty without giving his counsel an opportunity to address the finder of fact on the issue of guilt or innocence. Since the Court finds itself in accord with this contention, we shall limit our discussion to this one issue.

 The record of the trial in this case discloses that at the close of the Commonwealth's case, the following colloquy took place:

 
"MR. ROSENWALD: That is the Commonwealth's case your Honor.
 
"THE COURT: That is all.
 
"MR. ROSENWALD: If your Honor, please, I request to move for adjudication with respect to the matter solely with respect to Spears, because Owen Richard Davis has pleaded guilty.
 
"MR. WAYNESTEIN: Would your Honor respectfully renew my application for motion of withdrawal of the juror.
 
"THE COURT: Motion refused and the Court finds him guilty." (N.T. trial p. 125a)

 The right to summation before a jury is a well-established legal concept which in Pennsylvania, dates back to at least 1887. Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887). The Supreme Court of Pennsylvania has stated that "[arguments] of counsel are an integral part of a jury trial. They are not mere trial trappings which a judge is at liberty to dispense with or to ...


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