Van Dusen, Gibbons and James Rosen, Circuit Judges.
VAN DUSEN, Circuit Judge.
The Commonwealth of Pennsylvania appeals from a district court order granting George L. Spears' petition for writ of habeas corpus without hearing.*fn1 The district court found that the state judge before whom Spears was tried had prevented Spears' counsel from making a summation to the court sitting without a jury and held that this procedure constituted a denial of due process of law without regard to a showing of prejudice to Spears. Other issues raised in Spears' petition were not considered. For the reasons to be stated, we reverse the judgment of the district court and remand this case to the district court for consideration of the other issues raised in Spears' petition.*fn2
On April 21, 1964, Spears was brought to trial on Indictment 1549 of February Sessions 1964, Quarter Sessions Court of Philadelphia County, charging aggravated robbery. Spears and another co-defendant (Davis), represented by separate counsel, were tried before a judge sitting without a jury.
Mr. Anthony C. Malone testified for the Commonwealth that on the afternoon of December 23, 1963, three men attempted to rob him while he was working alone at the Italian Working Men's Building and Loan Association, but that he was able to chase them off with his revolver. At several times during his testimony, Mr. Malone explicitly and unequivocally identified Spears as one of these three men. N.T. 11, 12, 13-14, 29. Officer Wright, of the Philadelphia Police Department, testified that on January 25, 1964, Spears gave a written and signed statement to the police. The statement, read into the record and later admitted into evidence, contained an admission that Spears and two others agreed to rob the Association on the afternoon of December 23, 1963, and related facts, which were consistent with Mr. Malone's testimony. In defense, Spears testified that he was ill in bed the day that the attempted robbery occurred, that this fact could be verified by several witnesses, and that he was coerced into signing the statement read by Officer Wright.
After the presentation of evidence by the prosecution and the defense, Spears and Davis changed their pleas from not guilty to guilty. Before sentence was imposed, however, Spears requested permission to withdraw his guilty plea, which permission was granted by the trial judge. The trial was continued until May 4, 1964, to allow Spears to obtain alibi witnesses, at which time trial was resumed before the same trial judge. The defense had no witnesses other than the defendant Spears, who indicated to the court through his attorney that "he doesn't want to have anything to do with the trial. It's unfair." N.T. 6. The prosecution then called as a witness in rebuttal Davis, Spears' former co-defendant, who had changed his plea from not guilty to guilty. Davis testified essentially that he, Spears and another man identified by Davis as "Pittsburgh") attempted to rob Anthony C. Malone at the Italian Working Men's Association on December 23, 1963, using inoperative weapons, but that they fled when Malone got his gun out of a drawer and shot at them. See N.T. 7-11. At the close of the cross-examination of Davis by Spears' counsel, the following colloquy took place:
"Mr. Rosenwald [Assistant District Attorney]: That is the Commonwealth's case, your Honor.
"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 already has pleaded guilty.
"Mr. Waynestein [counsel for Spears]: Would your Honor respectfully renew my application for motion of withdrawal of the juror.
"The Court: Motion refused and the Court finds him guilty.
"Mr. Rosenwald: Defer sentence. May we see your Honor ...