ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 76-275)
Gibbons, Van Dusen, Circuit Judges, and Gerry,*fn* District Judge.
John Hickey, a prisoner of the Commonwealth of Pennsylvania, appeals from an order denying his petition for habeas corpus relief on the ground that he failed to exhaust remedies available under the Pennsylvania Post Conviction Hearing Act. 19 P.S. § 1180-1 et seq. Since each of the issues which Hickey tendered on the habeas corpus petition was presented to and considered by the Pennsylvania Courts on his direct appeal, we hold that the District Court erred in dismissing the petition on exhaustion grounds. Since one of his claims for habeas corpus relief is meritorious, we reverse the denial of the petition.
Hickey was convicted by a Pennsylvania Common Pleas Court jury of robbery, theft, involuntary deviate sexual intercourse, carrying a firearm without a license, and the commission of a crime of violence while armed with a firearm. He was given a general sentence of five to ten years. In post-trial motions and in his appeals to the Superior Court and the Supreme Court of Pennsylvania, he contended (1) that the trial court improperly admitted in evidence a jacket, trousers and belt seized at his home during the course of a warrant search since these items were not described in the warrant; (2) that the trial court committed error of due process dimensions when it admitted testimony of the victim concerning a flirtatious conversation between herself and Hickey several months before the offense; and (3) that in violation of the holding in In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), the Commonwealth was relieved of the burden of proving an essential element of the offense of carrying a weapon without a license. Following the denial of his appeals to the Superior and Supreme Courts of Pennsylvania, Hickey filed a federal habeas corpus petition on March 2, 1976, listing the same contentions. In the standard form petition for habeas corpus in use in the Middle District of Pennsylvania he alleged in paragraphs 15 and 16 that all these grounds had previously been presented. The District Court directed the Commonwealth to file an answer, and that answer admitted the allegations in paragraphs 15 and 16. Nevertheless, on June 16, 1976, the District Court filed an order dismissing the petition for habeas corpus relief because Hickey had filed no petitions under the Pennsylvania Post Conviction Hearing Act and thus had not exhausted available state remedies. When Hickey attempted to appeal in forma pauperis the court certified that the appeal was taken in bad faith and declined to issue a certificate of probable cause. In these rulings the exhaustion ground was reiterated. On December 10, 1976, a panel of this court granted leave to proceed in forma pauperis and issued a certificate of probable cause. The Commonwealth does not defend the District Court's exhaustion ruling on this appeal. Since the issues tendered in the habeas corpus proceeding were raised at trial and on direct appeal, state remedies have been exhausted. United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir. 1975); United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971). The merits of the habeas corpus petition must be considered.
II. THE Winship CONTENTION
Pennsylvania's version of the Uniform Firearms Act, now found at 18 C.P.S.A. § 6106(a), provides:
No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.
In a series of Superior Court cases prior to 1970, Pennsylvania held that in a prosecution for violation of the statute the Commonwealth need not affirmatively prove the absence of a license. See, e.g., Commonwealth v. Anderson, 191 Pa. Super. 213, 156 A.2d 624 (1959). In In re Winship, supra, however, the Supreme Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364. Hickey's trial took place after the decision in Winship, but before the decision in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). In McNeil, the Supreme Court of Pennsylvania held that because the absence of a license was an essential element of the crime, Winship required that the prosecution prove that element beyond a reasonable doubt. Thereafter several Pennsylvania cases held that McNeil would be given only prospective application. See Commonwealth v. Yaple, 238 Pa. Super. 336, 357 A.2d 617 (1976); Commonwealth v. Williams, 237 Pa. Super. 91, 346 A.2d 308 (1975). The Commonwealth urges that the Pennsylvania appellate courts properly rejected Hickey's challenge to the unlicensed possession of firearms conviction because his trial took place before McNeil, which is prospective only.
With deference, we observe that the Commonwealth, and the Commonwealth appellate courts, asked the wrong question. The question is not the retroactivity of McNeil, but the prospectivity of Winship. Certainly, as the McNeil opinion holds, there was never any doubt that the absence of a license was a material element of the offense. The issue tendered by Hickey is the effect of a complete absence of proof on that issue. Since he was tried after Winship, he must be given the benefit of the Winship holding that due process prevents his conviction absent such proof.
The Commonwealth also urges that because Hickey received a general sentence of imprisonment on several counts, including the unlicensed possession of firearms count, we should disregard the constitutional error which affects that count. Pennsylvania has never accepted the so-called concurrent sentence doctrine. See Commonwealth v. Wolfe, 220 Pa. Super. 415, 289 A.2d 153 (1972). But under Pennsylvania law a general sentence will be upheld if there is any valid count sustaining it, despite the invalidity of one or more of the other underlying counts, so long as the sentence is, as here, within the prescribed statutory maximum for the valid conviction. Thus it may be that even if the unlicensed possession conviction is invalid, the Pennsylvania courts would not disturb the sentence. But it does not follow that habeas corpus relief is unavailable. Certainly we must presume, as did the Court in Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969), Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968) and Pollard v. United States, 352 U.S. 354, 1 L. Ed. 2d 393, 77 S. Ct. 481 (1957), that there are present and future collateral consequences, in addition to present custody, flowing from the invalid conviction. And while some form of custody may be deemed to be jurisdictional for federal habeas corpus, " . . . the statute does not deny the federal courts power to fashion appropriate relief other than immediate release." Peyton v. Rowe, 391 U.S. 54, 66, 20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968). As early as Ex parte Hull, 312 U.S. 546, 85 L. Ed. 1034, 61 S. Ct. 640 (1941), the Court held that a conviction could be challenged in a habeas corpus proceeding even though petitioner would not be released if he prevailed. 28 U.S.C. § 2244(b) provides for "release from custody or other remedy." See Carafas v. LaVallee, 391 U.S. 234, 239, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Walker v. Wainwright, 390 U.S. 335, 336, 19 L. Ed. 2d 1215, 88 S. Ct. 962 (1968); Jones v. Cunningham, 371 U.S. 236, 243, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963). The District Court has the statutory authority to relieve Hickey from the collateral consequences, whatever they may be, of an unconstitutional conviction even though it would not disturb the general sentence which is sustainable on other counts.
III. HICKEY'S OTHER CHALLENGES
Hickey, of course, urges that the entire conviction should be set aside because the two other errors on which he relies, the allegedly invalid search and the allegedly improper admission of testimony by the victim, affected all counts. Before addressing ...