Van Dusen, Aldisert and Gibbons, Circuit Judges.
This appeal from a denial of a writ of habeas corpus, 316 F. Supp. 411, raises many well-briefed constitutional questions, of which we find three to require extended discussion:
(1) whether this court has habeas corpus jurisdiction under 28 U.S.C. § 2254(b) where no custodial sentence has been imposed;
(2) whether introduction of evidence seized by police offended the fourth amendment;
(3) the extent of state court discretion, measured against the equal protection clause, to deny requests for appointment of "such specialists as justice of the case may require" as provided in the Pennsylvania statute governing assistance of counsel for indigents in state criminal proceedings. 19 Pa.Stat.Ann. § 784.
On April 3, 1966, during the early morning hours, Mrs. Lena Alexandroff, age 79, her daughter, Natalie Tuchar, 44, and her granddaughter, Paula Tuchar, 14, were brutally beaten and raped in their Philadelphia home. Immediately, police began to canvass the area for two Negro males, both approximately five feet ten inches tall, one wearing dark clothes and a light tan coat, and the other wearing dark clothes, a dark coat, and a hat. Police had already picked up one suspect when they discovered appellant and another man walking along a deserted street about five blocks from the victims' home. Appellant wore a dark suit and carried a tan trench coat under his arm; his companion wore dark clothing and a dark coat. The officers drove alongside the two and asked them where they were coming from. One man "mumbled" an inaudible response. Testimony is conflicting as to whether the officers then ordered the two men into the car or merely instructed them to step nearer the vehicle. In any event, when one of the officers emerged from the car, appellant broke and ran. While fleeing, appellant dropped the tan coat and a radio which was stolen from the victims' home; he was quickly apprehended.
Appellant, his companion, and the other suspect immediately were taken to the hospital where the victims had been admitted. Police informed Mrs. Alexandroff and her daughter, who was being treated in the same room, that they had picked up some suspects, and that they would bring the men into the room for identification. The suspects were shown singly to Natalie Tuchar and then to Mrs. Alexandroff. Mrs. Alexandroff identified appellant and his companion but did not identify the third man. Father Vladimir Borichevsky, an acquaintance of the victim, was present and testified to this identification at the trial because Mrs. Alexandroff died nineteen days after the crime as a result of injuries sustained in the attack.
Appellant was convicted on nine of ten separate indictments emanating from these events. Custodial sentences were imposed on four, including a life sentence for the murder of Mrs. Alexandroff. Sentence was suspended on the remaining five indictments upon which appellant was convicted, including that for the rape of Mrs. Alexandroff.*fn1
Appellant's habeas corpus petition extends to his convictions under all of these indictments except one: he has not presented a petition challenging the conviction of murder. Appellant argues: (1) that the testimony of Father Borichevsky concerning Mrs. Alexandroff's identification denied appellant his sixth amendment right to confront witnesses against him; (2) that the police did not have probable cause to arrest him, and, therefore, that any evidence obtained as a result of the search incident to the arrest was inadmissible; and (3) that he was denied due process and equal protection of the laws by the trial court's failure to provide him with funds to employ a psychologist to examine him and to testify at the trial.
Because the sine qua non of federal habeas corpus jurisdiction is that petitioner be "in custody,"*fn2 we have concluded that the procedural posture of this petition prevents our consideration of appellant's contention that Father Borichevsky's testimony concerning Mrs. Alexandroff's identification of appellant denied him his rights under the confrontation clause.*fn3 The challenged testimony related a statement of Mrs. Alexandroff that appellant raped her. Thus because appellant's murder conviction is not under review, this testimony was relevant only to the conviction for the rape of Mrs. Alexandroff. Although appellant was found guilty of this crime, he was given a suspended sentence.*fn4 Without a custodial sentence, appellant was not "in custody" under that indictment within the meaning of 28 U.S.C. § 2254; thus, he may not seek federal habeas corpus relief therefrom.
The sole justification of federal habeas jurisdiction for a state prisoner is the statutory mandate that the applicant be a "person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254. Indeed, in the seminal case of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), Mr. Justice Brennan was careful to emphasize: "The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter." 372 U.S. at 430, 83 S. Ct. at 844.*fn5 Thus, custody is the passport to federal habeas corpus jurisdiction. Without custody, there is no detention. Without detention, or the possibility thereof, there is no federal habeas jurisdiction.*fn6
Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), and Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963), compel no contrary conclusion. In those cases petitioners applied for habeas corpus relief while incarcerated under or paroled from custodial sentences. Similarly, in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), a prisoner serving one of consecutive or successive sentences imposed by the same sovereign was held to be "in custody" for federal habeas purposes to challenge his detention under any of the other sentences. But custodial sentences were imposed for the convictions challenged in Peyton as in all the subsequent cases which have expanded the Peyton rule.*fn7 The expansion of the "in custody" jurisdictional concept has been in recognition that remaining "disabilities and burdens" which emanate from one conviction confer upon petitioners a "substantial stake in the judgment" sufficient to challenge that conviction even without present incarceration based thereon. Carafas, supra, 391 U.S. at 237, 88 S. Ct. 1556. No such stake appears here; petitioner is not in custody for one conviction which may ...