(dissenting).
I dissent from the majority’s disposition for two reasons:
“(1) I disagree with its holding that the Pennsylvania procedure under which Scoleri was tried transgressed the bounds laid down for state procedure by the due process clause of the Fourteenth Amendment, and
“(2) I disagree with its holding that Scoleri did not waive the protection which the majority says was accorded him by the federal due process clause.”
It must immediately be noted that in condemning as an abuse of federal process the Pennsylvania procedure pursued in the Scoleri trial the majority is overruling — and not merely limiting, as it asserts — our express ruling to the contrary just four years ago in United States ex rel. Thompson v. Price, 258 F.2d 918, 922, 3 Cir., cert. den. 358 U.S. 922, 77 S.Ct. 295, 3 L.Ed.2d 241 (1958). In Price, “We conclude [d] that the Pennsylvania procedure here under attack does not pass the bounds laid down for state procedure by the due process clause.” We prefaced that holding with the statement that “It is well settled that no particular form of procedure in state criminal trials is guaranteed by the due process clause of the Fourteenth Amendment”, and cited in support the teaching of the Supreme Court of the United States that “it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.” 1
The Due Process Issue:
While this Court can overrule its prior holding in Price, it can not overrule, nor can it reject, the teaching of the Supreme Court to which we gave effect four years ago in that case.
The case books abound with instances in which the Supreme Court has applied the principles stated in Price. A year ago, in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed. 156 (1961) it was held, for example, that exemption from compulsory self-incrimination is not safeguarded as against state action by the Fourteenth Amendment. In Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958) it was held that the refusal to permit one accused of murder the privilege of consulting his counsel while being questioned by State Police between arrest and arraignment did not of itself violate federal due process. It is interesting to note that in the case just cited this Court’s ruling to the same effect was affirmed.2
In Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) it was held that putting the accused on the stand as a witness for the State did not violate federal due process; in Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L. Ed. 597 (1900) a provision in the Utah Constitution for a jury of eight jurors in all state criminal prosecutions, for other than capital offenses, was held beyond the reach of federal due process; in Hurtado v. People of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) it was held that federal due process does not require an indictment by a Grand Jury in a prosecution by a State-for murder.
Well over half a century ago, the Supreme Court, in Rogers v. Peck, 199 U. S. 425, pp. 433-434, 26 S.Ct. 87, p. 89, 50 L.Ed. 256 (1905) in discussing the-sweep of the federal writ of habeas corpus said:
“The extent of the right of the Federal courts to interfere by the
*727writ of habeas corpus with the proceedings of courts and other authorities of a State is carefully defined by statute. When a prisoner is in jail he may be released upon habeas corpus when held in violation of his constitutional rights.
* «■ *
“The reluctance with which this court will sanction Federal interference with a State in the administration of its domestic law for the prosecution of crime has been frequently stated in the deliverances of the court upon the subject. It is only where fundamental rights, specially secured by the Federal Constitution, are invaded, that such interference is warranted.” (emphasis supplied)
In Snyder v. Mass., 291 U.S. 97, p. 105, 54 S.Ct. 330, p. 332, 78 L.Ed. 674 (1934) Mr. Justice Cardozo, speaking for the Supreme Court, spelled out the doctrine under review as follows:
“The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. * * * Its procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking-to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.” (emphasis supplied)
The latter statement is particularly pertinent here in view of the fact that the majority opinion makes it clear that its condemnation of the Pennsylvania trial procedure which permitted introduction of Scoleri’s prior criminal record for the avowed purpose of guiding the jury in the fixing of sentence in the event of a guilty verdict is premised on its conclusion that the practice was “gravely prejudicial” to the extent that it was “fundamentally unjust” and resulted in Scoleri being “overreached”.
The majority has disregarded the repeated admonitions of the Supreme Court that individual judicial notions and concepts of “unfairness” and “prejudice” and “fundamental injustice” with respect to State criminal procedures, no matter how appealing to the American sense of fair-play, is not the critical test to be applied in the application of the federal due process clause.
In Bute v. Illinois, 338 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986 (1948) which the majority has cited in support of its disposition, the Supreme Court recognized and applied the long-established doctrine that States “should have the widest latitude in the administration of their own systems of criminal justice” and held that the reach of federal due process did not extend to the failure in a non-capital case of a State court “to inquire as to [the petitioner’s accused’s] desire to be represented by counsel, or his ability to procure counsel, or his desire to have counsel assigned to him * * * in his defense”, or to offer or assign counsel to the accused.
In so holding the Court said (pp. 649, 650-651-652, 68 S.Ct. pp. 768-769):
“The Fourteenth Amendment, however, does not say that no state shall deprive any person of liberty without following the federal process of law as prescribed for the federal courts in comparable federal cases. It says merely ‘nor shall any State deprive any person of life, liberty, or property, without due proc-cess of law; * * *.’ This due process is not an equivalent for the process of the federal courts or for the process of any particular state. It has reference rather to a standard of process that may cover many varieties of processes that are expressive of differing combinations of historical or modern, local or other judicial standards, provided they do not conflict with the ‘fundamental principles of liberty and justice . which lie at the base of all *728our civil and political institutions * * This clause in the Fourteenth Amendment leaves room for much of the freedom which, under the Constitution of the United States and in accordance with its purposes, was originally reserved to the states for their exercise of their own police powers and for their control over the procedure to be followed in criminal trials in their respective courts. It recognizes that differences arise naturally between the procedures in the state courts and those in the federal courts.
“One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. * * *
While there have been modifications made by the states, the Congress and the courts in some of the relations between the Federal Government and the people, there has been no change that has taken from the states their underlying control over their local police powers and state court procedures.”
This Court, in United States ex rel. Darcy v. Handy, 224 F.2d 504 (3 Cir. 1955), aff’d 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331 (1956) gave cognizance to the “established constitutional doctrine” of “our limited function in correcting fundamental impropriety in state trials challenged under the due process clause” and said that it “makes it necessary that we leave alone many dubious occurrences in state procedure which we would proscribe if they should happen in a federal court.” (emphasis supplied)
The majority has prefaced its holding that the introduction into evidence of Scoleri’s prior criminal record was “gravely prejudicial” and “so fundamentally unjust” as to constitute violation of federal due process with citation of Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948) and quotation of a statement therein that “The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.” (emphasis supplied)
It must immediately be stated that in Michelson the issue of violation of federal due process in a state criminal trial was not involved. In that case the defendant had been tried in a federal court for the bribery of a federal officer and since he had admitted the payment but claimed it was induced by the officer the case hinged on whether the jury believed the defendant or the officer. The federal prosecutor in cross-examination of defendant’s character witnesses asked them if they had heard that defendant had been arrested 27 years previously for receiving stolen goods and the issue presented to the Supreme Court was whether the questioning with respect to the arrest constituted reversible error.
The statement in Michelson that evidence of an accused’s “prior trouble with the law” or “specific criminal acts” was inadmissible to establish “propensity” to criminal conduct was made in the course of a general discussion of rules of evidence relating to such testimony.
Michelson is completely inapposite to the situation here. In the instant ease the Pennsylvania procedure under which Scoleri was tried permitted the introduction of evidence of his prior criminal record not to establish “propensity” but for the single purpose of aiding the jury in its function, under Pennsylvania statute, of fixing the penalty, viz., life imprisonment or death, in the event that it found him guilty of murder in the first degree. As the majority has noted “the experienced judge presiding at Sco-leri’s trial” gave the jury a “careful charge” in which he, as required by the Pennsylvania decisions, properly cautioned it with respect to the limited use of the criminal record testimony.
The majority has decided, nevertheless, that it would be a “feat of psychological wizardry * * * impossible *729even for berobed judges” for jurors “to put the knowledge of Scoleri’s twenty-five convictions or pleas of guilty out of their minds while considering his guilt •or innocence” and therefore holds the Pennsylvania procedure a violation of federal due process.
In doing so it has completely overlooked the fact that the Supreme Court of the United States has time and again sanctioned the admission of prior criminal records for the purpose of fixing the more severe punishment provided under multiple offender and habitual criminal statutes.
It has also overlooked the fact that under the National Prohibition Act, 27 U.S.C.A. § 46, which fixed heavier sentences for second violations and provided that a prior conviction should be pleaded in the “affidavit, information, or indictment” charging the second offense, this ■Court held that introduction of evidence •of the prior conviction at the trial for the second offense was not only permissible but required. Hefferman v. United States, 50 F.2d 554 (3 Cir.1931).3
Habitual criminal statutes providing for greater punishment of second or subsequent offenses by the same person have long been in force in this country 4 and in England. It is the established rule, under such statutes, unless the statute designates a different mode of procedure, that, if the prosecutor desires to invoke the more severe punishment provided as to second or subsequent offenders, the indictment or information must allege the fact of the prior conviction, and the allegation of such conviction must be proved in the trial to the .jury.
The Supreme Court, as long ago as 1895, held in Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 that a Missouri habitual criminal statute was not in violation of the Fourteenth Amendment or any other provision of the Federal Constitution. In doing so it stated (p. 677, 16 S.Ct. p. 181):
“The fact that the indictment charged a former conviction of another and entirely different offense, is not in fact charging him with an offense with respect of the former offense in the case in hand. The averments as to the former offense go as to the punishment only.” (emphasis supplied)
Six years later, in 1901, the Supreme Court in McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 in holding that the Massachusetts habitual criminal statute, which provided for charging a former conviction in the indictment, did not violate any of the provisions of the Fourteenth Amendment, rejected the appellant’s express contention that “Any statute allowing the government to make bad character a part of its original case is unconstitutional.” In doing so the Supreme Court said (p. 313, 21 S.Ct. p. 390):
“The allegation of previous convictions is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only.” (emphasis supplied)
In Graham v. West Virginia, 224 U.S. 616, pp. 629-630, 32 S.Ct. 583, p. 588, 56 L.Ed. 917 (1912) it was held:
“Although the State may properly provide for the allegation of the former conviction in the indictment, for a finding by the jury on this point in connection with its verdict as to guilt and thereupon for the imposition of the full sentence prescribed, there is no constitutional mandate which requires the State to adopt this course even where the former conviction is known. It may be convenient practice, but it is not obligatory. This conclusion neces*730sarily follows from the distinct nature of the issue and from the fact, so frequently stated, that it does not relate to the commission of the offense, but goes to the punishment only, and therefore it may be subsequently decided. * * *
“A State may make different arrangements for trials under different circumstances of even the same class of offenses.”
The foregoing illustrates the teaching of the Supreme Court that the choice of methods for the conduct of criminal trial procedures insofar as they may relate to the order of the introduction of evidence having impact on the critical issue of sentence is reserved to the separate states, and that the freedom of such choice is not proscribed under the Fourteenth Amendment.5
Finally, on the score of what has been said it must be noted that this Court in United States ex rel. Collins v. Claudy, 204 F.2d 624 (3 Cir.1953) gave effect to the holding in Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S. Ct. 59, 82 L.Ed. 43 (1937) that
“For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.” (emphasis supplied)
In Claudy we in fact held that “fundamental fairness in judicial procedure required that the court impose an enhanced penalty only upon the basis of a supporting judicial determination of the essential facts made after the defendant had been informed of and heard upon the issue of recidivism” and that “The omission of such procedure was a denial of due process of law * * 204 F.2d 629.
An analysis of judicial decisions discloses that the courts have also permitted wide latitude in the admission of evidence relating to criminal conduct of an accused, independent of the crime charged in the indictment, when evidence of such conduct was introduced to establish “intent” or “design” or “capacity” or “identity” of the actor.6
Thus, in United States v. Laurelli, 293 F.2d 830, 3 Cir., cert. den. 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392, this Court just a year ago, in a trial charging bribery attempt, sanctioned introduction of testimony of unrelated bribery attempts by the same defendant, one, eleven months, and the other, fourteen or fifteen months, after the bribery attempt charged in the indictment, on the ground that the subsequent conduct was admissible “to show defendant’s intent” and “a pattern”. 293 F.2d 832.
Evidence of other similar offenses has time and again been held to be admissible for the purpose of establishing intent in cases of assault with intent to rape and in prosecutions for crimes involving a depraved sexual instinct. In prosecutions for adultery evidence of prior adulterous conduct has also been held admissible.7
*731Again, defendants in criminal cases who offer good character testimony open the door to the introduction of prior criminal records.
What has been said on the score of the exceptions to the general rule which excludes evidence of other crimes designed to show propensity makes it clear that the exceptions are almost as general as the rule itself.
At any rate, as it was said in Baltimore Radio Show v. State, 193 Md. 300, 67 A.2d 497, 510 (1949), cert. den. 338 U.S. 912, 70 S.Ct. 252, 94 L.Ed. 562 (1950):
“Without questioning the soundness of the rule of exclusion prior to verdict, it remains a rule of evidence, not a constitutional right.”
Here the majority has exalted a simple evidentiary rule to the hallowed status of a constitutional guarantee, and its action in doing so is without precedent.
In conclusion, this too must be said on the score of the majority’s holding that the Pennsylvania procedure pursued in the Scoleri trial violated federal due process:
While it is true that the denial of an application for certiorari by the Supreme Court of the United States is not to be construed as approved of the decision sought to be reviewed, it at least merits observation that the Court has in recent years denied applications for certiorari in ten cases8 including that of Scoleri, where the Pennsylvania Supreme Court had sustained convictions in cases tried pursuant to the procedure now condemned by the majority as in violation of federal due process, and in United States ex rel. Thompson v. Price, supra, where we specifically held that the procedure involved was not in violation of federal due process. On this score it certainly cannot be said that the United States Supreme Court has. in recent years failed to evidence adequate appreciation of the vitality and sweep of the federal due process clause. It merits notation that in only one of the cases in which certiorari was denied, Commonwealth v. Rucker, sub. nom. Rucker v. Pennsylvania, 368 U.S. 868, 82 S.Ct. 91, 7 L.Ed.2d 65 (1961),9 one justice ex*732pressed an opinion that it should have been granted.
The Waiver Issue:
The majority holds that Scoleri did not, at his trial, waive the protection which it says was accorded him by the federal due process clause. It dismisses as “totally lacking in validity” the contention of the Commonwealth of Pennsylvania, via the appellee, to the contrary.
I disagree.
Assuming, arguendo, that the majority has correctly held that the admission into evidence of Scoleri’s criminal record, over his objection, in the course of the prosecution’s case, was fundamental error violative of federal due process, the trial record establishes that Scoleri waived or cured that error when he invoked his criminal past in the presentation of his defense, as subsequently detailed.
On that score, it is settled law that federal due process rights may be waived “intelligently and understandingly”, Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), and whether such a waiver has occurred “must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused”, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); further, an error in the admission of testimony, over objection, is cured when the party injured thereby subsequently offers similar testimony in his own defense, 1 Wigmore, Evidence, § 18(D) (3 ed. 1940): otherwise stated, “If it happens that a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, of course, he has waived his objection”, McCormick, Evidence, § 55, at 129 (1954).
First, as to the “background” and “experience” of Scoleri:
The record discloses that he was almost 30 years old at the time of his trial; he had earlier served some six years of a 20-40 year jail sentence following pleas of guilty in April 1948 to indictments charging him with participation in 22 separate armed robberies; after getting out of jail he worked for a year as a secretary to a Dr. Vasquez, a Baptist minister, and then completed one year of study at a liberal arts college in West Virginia; he had been a Sunday school teacher and had served as vice-president of the Youth Fellowship of his church which he attended regularly.
Second, as to Scoleri’s “conduct” at his trial:
When Scoleri took the stand in his own defense, his counsel, Colonel Colbert C. McClain (a former assistant district attorney), almost immediately proceeded to examine him with respect to damaging state’s evidence that he had given shelter to one Ricky Woods who had been wounded by a pistol shot while participating in the robbery-murder for which Scoleri was being tried and that Woods had died without receiving any medical attention and was subsequently given furtive burial by Scoleri and his brother Edward10 in a shallow grave which they dug with improvised implements in a wooded area in New Jersey. Scoleri readily admitted the truth of the state’s, evidence as outlined, and, in the course of doing so, gave the following “explanation” of his failure to take Woods to a hospital when he was unable to get a doctor to treat him:
“ * * * I asked Dante [Sco-leri’s brother] to take Ricky and me to the hospital to get some medical *733attention, and he exclaimed, ‘Tony, with your record they will never believe you weren’t there. You can’t be involved, Don’t get involved,’ he screamed.
“I said, ‘The man needs help’.
“He said, T don’t want to have anything to do with it, and I suggest you don’t have anything to do with it.’ ”
With respect to his participation in Woods’ macabre burial, Scoleri, in response to his counsel’s question: “Why did you do that, Tony”, made this reply:
“Eddie was a total mess. He was in a stupor. He had been drinking rather heavily, and at the apartment he was drinking even more, and he was completely numb. He didn’t know what to do, and he begged me to help him. He said, ‘Help me, Tony.’
“ * * * So I told Mm I had my bach time, 30 years — 30 years parole hanging over my head, and there wasn’t much I could do without becoming involved.
“Eddie broke down and cried, and he said, ‘I don’t know what to do’.”
After Scoleri’s counsel elicited the information that Edward was his “baby brother” he asked him:
Q. “Did you want to help your brother?
A. “I did, sir.
Q. “Is that the reason why you did these subsequent things after Ricky Woods died?
A. “Yes.”
The foregoing establishes, as earlier stated, that Scoleri’s prior criminal record was invoked by him as part of his “defense” of undisputed conduct which the jury could properly find, as it did, involved him in the commission of the robbery-murder. That being so, under the principles stated, Scoleri waived and/or cured the fundamental error which the majority holds was committed in the admission of evidence of his prior criminal record in the presentation of the state’s case.
Still another instance must be cited of Scoleri’s invoking of his prior criminal record as part of his “defense”. A state witness, Richard Febo, had testified that Scoleri, on the day of the robbery-murder, had shown him two revolvers which he said were to be used by him in a holdup or armed robbery and had invited him to participate, but he declined. In an apparent effort to discredit Febo’s testimony Scoleri was asked by his counsel:
Q. “Who is Richard Febo?
A. “Richard Febo was my accomplice when we were arrested in 1948 for a series of armed robberies.
Q. “Do you know of your own knowledge how much back time Febo has?
A. “He has 30 years’ back time.”
Scoleri then testified that when Febo, with whom he had served in jail, “first came home from prison he was unstable emotionally and distraught * * * given to outbursts of temper and crying spells”, and he introduced him to Dr. Vasquez “for some spiritual aid”.
It is of course obvious that again Sco-leri premised a defense maneuver with respect to Febo’s testimony on his “concern” for this “emotionally and distraught” man, and that a necessary ingredient of the defense strategy was the establishment of their past common criminal association.
It may further be observed that Dr. Vasquez was called by the defense to corroborate Scoleri’s testimony that Febo was an unreliable witness. He testified that Scoleri brought Febo to see him at one time and said to him, “Here is a boy who is very badly mixed up. Let us see if we can help him”. In doing so Dr. Vasquez testified preliminarily that Sco-leri “did fine work for me when he came out of the penitentiary”. Here again a Scoleri defense witness testified as to his prior criminal record thus waiving or *734curing the “fundamental error” condemned by the majority.11
There remains only this to be said. The federal due process clause which was designed to protect the innocent should not be discredited by its use to afford “mere technical loopholes for the escape of the guilty.” Stein v. New York, 346 U.S. 156, 196-197, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). It was there said (p. 197, 73 S.Ct. p. 1099):
“The petitioners have had fair trial and fair review. The people of the State are also entitled to due process of law.”
In the instant case Scoleri had a “fair trial and fair review” by the Supreme Court of Pennsylvania. The people of the State of Pennsylvania “are also entitled to due process of law”.
For the reasons stated I would affirm the Order of the District Court denying Scoleri’s petition for the writ of habeas corpus.12
STALEY, Circuit Judge, joins in the foregoing.
. Hoag v. New Jersey, 356 U.S. 464, 468, 78 S.Ct. 829, 2 U.Ed.2d 913 (1958).
. In the Matter of the Application of Ci-cenia for a Writ of Habeas Corpus, 240 F.2d 844 (3 Cir. 1957).
. To the same effect, Massey v. United States, 281 F. 293, 296-298 (8 Cir. 1922); Smith v. United States, 41 F.2d 215, 217 (9 Cir. 1930), cert. den. 282 U.S. 876, 51 S.Ct. 80, 75 L.Ed. 773.
. In Virginia and New York as early as 1796 and in Massachusetts since 1804.
. A long line of cases in the State courts involving state multiple and habitual offender laws have approved the admissibility of evidence of prior convictions before the defendant’s guilt or innocence of the subsequent offense has been determined by the jury. See, e. g., State v. Meyer, 258 Wis. 326, 46 N.W.2d 341 (1951); Atha v. State, 217 Ark. 599, 232 S.W.2d 452 (1950); People v. Lawrence, 390 Ill. 499, 61 N.E.2d 361 (1945), cert. den. 326 U.S. 731, 66 S.Ct. 38, 90 L.Ed. 435; Etkerton v. Jones, 350 S.W.2d 151 (Ky.1961), cert. den. 369 U.S. 845, 82 S.Ct. 876, 7 L.Ed.2d 848.
. United States v. Stirone, 262 F.2d 571, 576 (3 Cir. 1959), rev’d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
. 2 Wigmore, Evidence (3rd ed. 1940) §§ 300-373.
. The ten applications denied, including that of Scoleri, are as follows:
Commonwealth v. Simmons, 861 Pa. 391, 65 A.2d 353 (1949), cert. den. 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528 (death sentence imposed)
Commonwealth v. De Pofi, 362 Pa. 229, 66 A.2d 649 (1949), cert. den. 338 U.S. 852, 70 S.Ct. 82, 94 L.Ed. 522 (death sentence imposed)
Commonwealth v. Johnson, 372 Pa. 266, 276-277, 93 A.2d 691 (1953), cert. den. 345 U.S. 959, 73 S.Ct. 944, 97 L.Ed. 1379 (life imprisonment imposed)
Commonwealth v. Lowry, 374 Pa. 594, 603, 98 A.2d 733 (1953), cert. den. 347 U.S. 914, 74 S.Ct. 479, 98 L.Ed. 1070 (life imprisonment imposed)
Commonwealth v. Cannon, 386 Pa. 62, 64-65, 123 A.2d 675 (1956), cert. den. 352 U.S. 898, 77 S.Ct. 139, 1 L.Ed.2d 90 (life imprisonment imposed)
Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207 (1957), cert. den. 355 U.S. 849, 78 S.Ct. 77, 2 L.Ed.2d 59 (death sentence imposed)
Commonwealth ex rel. McNeair v. Banmiller, 391 Pa. 119, 137 A.2d 454 (1958), cert. den. 356 U.S. 946, 78 S.Ct. 793, 2 L.Bd.2d 821 (life imprisonment imposed) Commonwealth v. Wilson, 394 Pa. 588, 608, 148 A.2d 234 (1959), cert. den. 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (life imprisonment imposed)
Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960), cert. den. 364 U.S. 849, 81 S.Ct. 93, 5 L.Ed.2d 72 (death sentence imposed)
Commonwealth v. Bucher, 403 Pa. 262, 168 A.2d 732 (1961), cert. den. 368 U.S. 868, 82 S.Ct. 91, 7 L.Ed.2d 65 (death sentence imposed)
In addition the Supreme Court denied the application for certiorari, 358 U.S. 922, 77 S.Ct. 295, 3 L.Ed.2d 241, from our decision in United States ex rel. Thompson v. Price, 258 F.2d 918 (3 Cir. 1958) holding that the Pennsylvania procedure here involved was not an abuse of federal due process.
. Appeal is now pending in this Court from the denial of a writ of habeas corpus by the United States District Court for the Eastern District of Pennsylvania in United States ex reL Bucher v. Myers, *732200 E.Supp. 557 (E.D.Pa.). The proceedings in the District Court were filed subsequent to the denial of Rucker’s application for certiorari by the United States Supreme Court, supra, note 8.
. Edward Scoleri had also been indicted as a participant in the robbery-murder but had been granted a severance (separate trial) on his application. He subsequently pleaded guilty and was sentenced to life imprisonment.
I. I have not adverted to the circumstance that Scoleri’s counsel had brought to light his criminal past in cross-examination of Ida Iocco, a state witness, long before the state introduced into evidence the mooted criminal record, because in my opinion it is unnecessary to rely on it in view of the conduct of the defense in making Seoleri’s criminal record a vital defense factor thus waiving or curing the state’s error, if error it be.
It was on cross-examination of Mrs. Iocco that the defense elicited the statement that Febo “was in prison with Tony [Scoleri]”. Mrs. Iocco had not on the state’s direct examination even mentioned Febo or made any statement with respect to Scoleri’s prison service.
. The majority has noted that “Judge Goodrich participated in the consideration of this case but died prior to the filing of this opinion.” It should be noted that at the conference following oral argument of this appeal Judge Goodrich voted to affirm the Order of the District Court denying the writ of habeas corpus.