*1 Hough Maroney, Commonwealth ex rel.
Aрpellant. Argued C. Mus- J., Before Bell, 2, 1966. December JJ. Roberts, O’Brien Eagen, manno, Jones, Attorney, District with Assistant Dams, J. Alan Attorney, him District Rotko, Assistant Michael J. appellant. Attorney, Specter, District
Arlen appellee. Marjorie Matson, Hanson May 1967: Opinion Chief Justice Bell, Mr. appeal by Commonwealth from the This Hough’s granting of Common Pleas Order corpus. of habeas for a writ a result filed as petition present District of United States and decision *2 a Rosenberg Hough’s sur Judge Hough ex rel. States corpus: of habeas United writ Pa.). Judge F. Supp. (W.D. Rosen mere had Court (a) berg believed that this mistahenly sen of the and justification “the passed upon ly an than . . . rather tence received [Hough had] had and on the of the conviction” attack substance merits the upon and decided passed never (b) per the and that under the facts contention Con or not lawfully he could principles tinent law, “In sum of murder. have been convicted stitutionally State to all the relating Pennsylvania total the records validity indicate courts sup affected false conviction as judgment them before placed evidence never had been pressed thread thin present . . a may !a determination. . This For a difference nevertheless.” of difference—but Rosenberg Hough held that naturally reason, remedies. not exhausted his State had The issues and the as well facts, record, very of the Court of Common are recent decision Pleas, must be reviewed at great length. unusual and sentence of life imprison is now Hough serving armed for murder. The out of an killing grew ment Al David and his two by Hough confederates, robbery in 1947. The three robbers, and James Smith, meida escape from the attempting engaged scene, while off-duty with the which an police, during battle and killed.* was shot Ingling, policeman, greater deem state detail the facts We wise murder and the relevant concerning robberies, January present On relator issues. park entered a Almeida, public with Smith
Hough, details, infra. see further For ing garage City Philadelphia, covered the at Hough tendant with loaded threatened revolvers, him, (and each) register, then robbed a cash Hough During robbery, stole an hit automobile. on attendant a revolver. side head with
Whey public then drove the stolen ear to Acme su perservice parking against market. After the car Hough leaving curb, Almeida entered the market, Smith at the wheel. Both revolvers, drew loaded everyone bay, threatened the attendant, and held at they registers. while rifled the When terrorized, cash manager yelled of the store became “hold excited, up,” and started to run toward the rear the store, at him. Almeida fired This shot missed. jumped
Almeida then ran the store into the *3 driving. stolen car which Smith was a There was people crowd of a shot Almeida fired street, Hough into air as he and ran from store en Hough pol directly trance. fired a shot at one of the only yards luckily away icemen* who was a few but him. missed
At or about the time the robbers at the su- arrived permarket, Ingling, City patrolman, Cecil a arrived at supermarket family. in his automobile with He duty off was and was in civilian He also clothes.
рarked against super- his car in curb front of the alighting personal market before to attend to some neighborhood. By in business the rob- coincidence, parked immediately Ing- bers’ car was to the left of ling’s car.
At or about the time the robbers fled from the su- police permarket, two cars arrived at the scene and ex- changed a fusillade shots Aviththe includ- robbers, corpus hearing habeas *At the recent before Rosеn- only witness, Hough was the berg, at which denied this. unnecessary quote self-serving to other and false It statements hearing. by Hough at made 414 had rearrived in the direction of who Ingling shots
ing killed bullet wound aby at scene. was capture Hough he to attempting the head while police. who was at firing directly apprehended immediately, almost
Hough was
coun
represented
experienced
able and
by
while
later,
an indictment
plea
generally
entered a
sel,
guilty
plea
guilty
murder. Defendant’s
charging
(relator’s)
confes
a
open Court while
counsel is
represented by
charged
of the crime
he is
with which
guilt
sion
Pa.
the indictment: Com. ex rel. Finnie v. Russell,
accepted
to this conviction and sentence Court, judgment affirmed a unanimous Court: Commonwealth Pa. A. 2d 84 Hough, (1948). Justice Justice) for the speaking Court, Chief (later Jones, : 252) defendant, (page “Notwithstanding said pleaded under the advice able counsel, which he was indicted has throughout the first conceded we degree, *4 both the law have reviewed in the evidence are bidden statute to do in as we case* first of (Act February P. L. 1870, murder cases Sec. and we §1187), ingredients necessary PS find in the murder constitute to to hare been first exist.”** proven For further details, see infra.
**
throughout, ours.
Italics
under
Hough
Nevertheless,
(1)
contends
later
(10 years
of
later) decision
Commonwealth
Redline,
Almeida and Smith were apprehended about a year later another State and returned to Pennsylvania. Thereafter a jury found Almeida guilty the first degree and sentenced him to death. Hough testified as witness for the at (a) coroner’s inquest at Al- (b) Almeida’s trial, shot meida and killed he Ingling. testified that standing alongside Almeida who within two feet of and that Ingling, Almeida fired bullet the fatal which killed and said “I Ingling, got son-of-a- bitch.” further
We note that Smith tried two weeks For later. first time appeared that an Assist- ant District had Attorney deliberately suppressed evidence indicated that was killed bullet from the offi- police arresting cers. The found Smith jury
first but probably degree, because hitherto sup- pressed sentenced him evidence, imprison- life only has never ment. Smith taken appeal or filed any petitions. post-conviction Almeida (a)
Thereafter, appealed his conviction to the and sentence Court of Pennsylvania, filed with also us a and (b) for a new trial. that certain contended showed that facts mistakenly by shot a pofyceman. This
fatal the trial Judge’s Court affirmed to the charge jury: *5 416
“ no difference jury charge it makes I that \ . . will by Mrs. fired if a shot was who firеd the even shot, Ingling, it still murder.’ charge [fatal] ‘If that said:
“In the trial anyone anyone, by removed fired even shot were in participants, fired and that shot three these jury, perpetration robbery, of the members of a degree. . . . first murder; is that is persons of cir- in motion chain set If one or more persons those death ensues, out of which cumstances by responsible any di- death for which be held must sequence, by from such results almost inevitable rеct, Officer if So, . . the death criminal act. . unusual consequence unlawful of the the inevitable the continuation or or defendant, acts, act, acting defendant, acts, the unlawful act, every an unlawful act who does concert—for one by follows— the law the doer all that considered robbery, if and the result if act that unlawful be killing killing, jury, members of the that act is ” is murder.’ joined lengthy pages, of 43 This in a Court, by Justice, and concurred one five Justices thoroughly carefully all the facts and considered con- affirmed Almeida’s law, the evidence sentence the first viction Specifically, rejected the Court defendant’s death. charge point and his contention below and below “ you fired ‘If find that the bullet here, by any deceased was killed the charged perpetrating robbery with men three question, you convict the of murder cannot defendant ” degree.’ Commonwеalth v. Almeida, in the first (1949) on; A. 2d 595 November Pa. 596, reargument was denied Almeida’s rehearing 339 U.S. denied, 924; Court; certiorari de- 339 U.S. nied,
On
for
Almeida filed
a
May 15,
petition
a
1950,
of
Penn-
corpus
writ
habeas
Court of
Supreme
the
petition
sylvania
(361 Mise. Docket No.
This
9).
intentional
again specifically raised the issue of the
suppression
the
of
by
Attorney
Assistant District
vital
evidence that
fatal bullet came
evidence, namely,
the
of
pistol
the
After
police
officers.
carefully
as
other
considering this,
well as every
issue,
this Court on May
petition
1950 denied
26,
Almeida’s
Per
a
Curiam
Certiorari
the
by
Order.
was denied
Supreme Court of the United
In Almeida corpus filed a habeas in the Federal District Court for Eastern the District of once there was Pennsylvania, again contending a deliberate suppression material evidence the by of Commonwealth, fatal shot was fired namely, by policemаn who was to capture the robbers. The trying writ granted: United States ex rel. Almeida v. 104 F.
Baldi, Supp. (E.D. of Pa. 1951), affirmed, F. 2d 815 (1952); cert. den. 345 U.S. rehear ing denied 345 U.S.
In United States ex rel. Almeida Baldi, 195 F. 2d, the Circuit Court of supra, Appeals held although who (1) question shot un was, fired of fatal der the law Pennsylvania, irrelevant to the issue of or whether was not guilty of first mwrder, it was (2) pertinent and relevant to the as to be imposed at penalty by jury trial, (3) the suppression evidence, as bore on the insofar violated question penalty, due process under the Fourteenth Amendment. That Court* pertinently . 819-821) : “. . Who (pages said killed awas as to penalty be issue, imposed relevant jury the most perhaps relevant trial, at one. Under the the jury had 24, 1939, of June the power Act of life Biggs. Opinion by very Obief able In in this below In the court Almeida. death over contended court the Commonwealth to the issue irrelevant shot was who thе fatal de was or whether Almeida of first Supreme Court gree citing decisions of murder, Moyer Pennsylvania Almeida’s case* agree. . . . we case.* With suppression of evidence . . But if deliberate
“. even Pennsylvania alleged had been April P.S. very of the Act terms under granted trial a new could not have Pa. §861, no doubt there can be old and new, all the evidence, degree** *7 guilty murder in the Almeida was first Pennsyl under decision interpreting apрeal, supra, deci its in Almeida’s vania Moyer in the case.” sion petition for a in filed a 1960,
Thereafter habeas cor nobis and a writ of error coram writ complete discharge pus, seeking conviction from his ground afore on of and sentence murder, suppression District of evidence the Assistant said Attorney of Commonwealth v. Red and on the basis Opin supra. This a unanimous line, Court, 391 Pa., Hough’s (1) of ha for a dismissed writ ion, (2) corpus for a writ and of coram nobis: Commonwealth beas Hough Maroney, v. x rel. e 167 371, (1961); cert. den. 366 971. That deci A. 2d 303 U.S. rejected therein and which all sion present contentions, controls the instant case. briefly reciting pertinent The after Court, facts, 375-376) (pages : “. . . The circuit court of said although appeals that, as to stated who Almeida, Pa., supra; 362 v. Commonwealth v. Byron, A. 2d Moyer Pa. 736. ** pleaded guilty retrial, On sentenced to life infra. imprisonment. See
fired the fatal of wheth- shot was irrelevant to the issue er Almeida mur- was not guilty first it imposed was relevant der, to he penalty the jury at the of evi- suppression trial, dence, so far as on violated due this question, bore Al- process of law under the Fourteenth Amendment.
meida then entered a guilty plea, was adjudged of murder the first im- sentenced to life prisonment. Appellant’s death sentence was commuted to that of life on imprisonmеnt February 24,
“. . . It is
if
argued
killed
aby
were
that,
bullet fired from the
of a
this would
policeman,
constitute
accidental
under such
killing
that,
circumstances, Hough’s conviction of murder could not
be sustained, citing Commonwealth
Pa.
Redline,
“The basic fallacy the appellant’s contention lies fact murder felony rule laid down Bedline case, supra, is now the law Penn enunciated until sylvania, than ten more after appellant’s years conviсtion and sentence. Un der the murder rule as it felony existed in this State time of appellant’s at the plea of guilty to a charge conviction generally, *8 first and his ensuing sentence to who death, shot was irrelevant to the guilt* of the fired fatal conspirator felonious so long as it was fired aid of perpetration or in resistance to the of the felony. While to who the fact as fired fatal shot in the instant have been relevаnt to may case whether appellant’s guilt in the first answer to one of contentions, In further technical rejected, may times we have several we which ask: How can a penalty approve affirm a of death in a Court murder ease necessarily (or first decides that defendant relator) unless degree murder. guilty of first (U.S. penalty the death life imprisonment merited sentence the death v. Baldi, supra), ex rel. Almeida life to commuted received was later originally which he the most accorded he been that has imprisonment so he was crime whereof fitting sentence favorable allegation guilty. Obviously, therefore, found duly appellant’s fatal that shot was him. help cannot even if established, co-conspirators, “Order affirmed.” raised
Once the identical issue which is again, in Common- again rejected case was raised and instant 187 A. ex rel. Almeida v. Rundle, wealth facts reviewed the Once this Court again, 2d 266. contentions all the rejected
the law unanimously case. The is the instant Hough making for a Almeida’s petition entered an Order dismissing 461- in its corpus (pages 460, habeas said court from an appeal : “This order 462) is of habeas cor- below a writ dismissing . pus. . . and Ter- Oyer
“When the Court of arraigned before upon face trial Philadelphia County miner of Al- (October indictment the second time 28, 1954), entered meida plea guilty, adjudged guilty murder in the first the court and sentenced degree by It imprisonment. appeal to life No was taken. and confinement he
from this sentence seeks in this action. release
“It the factual background case appears death resulted not from the victim’s a bullet fired or one of his but Almeida rather from a co-felons, policeman fired from the a fellow bullet on the assisted scene in who attempting deceased, the criminals. apprehend convicted
“When crime involved, law of where, such as of a felony, a third robbery, person commission
421
is hilled
resisting
or who is endeavor
felon
ing
prevent his
of the
escape
crime,
the scene
the felon is
gnilty
See,
the first degree.
Commonwealth v.
v.
supra; Commonwealth
Almeida,*
&
Moyer
357 Pa.
53 A. 2d
(1947);
736
Byron,
181,
v.
Commonwealth
374 Pa.
“It is the contention the appellant that under the rule of ishe Redline, murder and guilty of that his hence, conviction must be declared void and release directed.
“The
legality
appellant’s conviction
is
must be
governed by
law of Pennsylvania
it ex-
isted at
the time
said conviсtion:
ex
rel. Hough v.
402 Pa.
371,
“Order affirmed.” Maryland, v. Brady U.S. the suppression ease which most closely evidence resembles Hough’s Doris, also, Commonwealth v. 313; See Pa. 135 Atl. Guida, also Commonwealth A. 2d cf. *10 for par arrested were confederate Brady
case. com murder was wbicb during a robbery ticipation He first. tried Brady by Brady. allegedly mitted, confederate that his claimed but admitted his guilt jury the that requested fatal bullet fired the had punish capital “without of guilty a verdict return of first convicted Brady ment.” purposely death. The prosecution and sentenced Brаdy’s confederate, made by the withheld confession the had Brady that he and stated fatal of after conviction, Brady learned, shot. When post-conviction he sought of this confession existence held Appeals Court of [Maryland] relief. The due denied petitioner statement suppression him trial but limited of a new process granted law and not to the to the question punishment solely of United The Court of the guilt. question of on cer of 7 to the case 2) a vote (by States affirmed Ap : “. . of (pages 85-86) and said . the Court tiorari of peals suppression held that the evidence by petitioner process due prosecution denied for a retrial of question case remanded question not the 226 Md. guilt.* punishment, is here on A. 2d 167. The case 371 U.S. certiorari, question “The crime committed in of a perpetration robbery. Punishment imprisonment is life Maryland crime death, to restrict empowered being punishment jury of the words punish- addition ‘without capital life by Ann. Code, 3 Md. Art. ment.’ In 27, §413. reason of the state Maryland, constitution, jury ‘the case are Judges of in a criminal Law, well as * Similarly, suppressed Sough’s go evidence case would punishment question solely and not to the to the guilt fact.’ Art. The question presented XY, §5. petitioner
whether was denied a when right federal Court Appeals restricted the new trial to the ques- tion рunishment. agree
“We with the of Appeals suppres- sion of this Due confession was a violation Process Clause of the Fourteenth Amendment. The Court of Appeals relied in the main on two decisions from the Third Circuit Court of Appeals—United States ex rel. Almeida v. F. 2d Baldi, *11 United States ex rel. Thompson v. Dye, F. 2d 763— we which, state the rule.” agree, correct constitutional The decision of Court of the United States in the case is additional Brаdy strong authority for denying relief in this any appeal. Although Hough was originally sentenced to his sentence death, was commuted on February hereinabove 24, 1955, to life stated, imprisonment. Life imprisonment lenient most im- possible punishment that can be posed in Pennsylvania crime of first Act of June murder, P. L. 18 P.S. §701, no purpose justice and no would Consequently, §4701.
be served in granting petitioner’s writ and requested compelling the Commonwealth to him. retry it is often overlooked
Moreover, that a defendant enters a plea guilty because of his knowledge he the crime and not charged, because his knowledge what evidence the Commonwealth may him. have against Therefore, suppression of Commonwealth’s evidence in ma- Hough’s case had a terial bearing and relevant not on guilt his but only because even if punishment, suppressed on evi- been admitted would not dence had have affected his guilt invalidated mwder under the of first which was Pennsylvania then effect. ex rel. Hough v. 402 Pa., Commonwealth ex rel. Almeida supra, v. Rundle, us, require point directly are Pa., supra, reverse slightest doubt, without Heed’s Circuit Court the decision decision. Moreover, ex rel. Almeida in United States the United States of the Su decision 195 F. and the Baldi, v. 2d, supra, Mary Brady States preme Court of the United quoted, are hereinabove which land, U.S., supra, in Hоugh’s no merit there is further demonstrate (and To conviction Hough’s contentions. set aside spun of life on imprisonment) any finely sentence at robberies nineteen after the years theory, crimi ultra these three tempted dangerous murders death, Ingling’s caused battles nals, and of Justice. be to make a the Law mockery would cor- of habeas Order writ reversed, pus dismissed. part no in the considera-
Mr. Justice Cohen took case. tion or decision this
Concurring Roberts: Mr. Justice appеal The central is whether issue deci- of evidence tainted suppression state’s *12 be cannot now plea enter a so that it sion to guilty The ma- entered. plea was knowingly said that restate- is its opinion’s only allusion to this issue jority ato plea equivalent rule that a is guilty ment of the that the assumes general rule, however, this conviction; entered. knowingly plea plead guilty, made his decision to Hough time
At the Commonwealth under this irrelevant it was co-felon or a bullet a the fatal whether In have been Hough either event would party.* third murder. At below hearing of first guilty Hough rel. ex (1961). 2dA. did not to a ex-
Hough attempt even offer tenable to planation how of the source knowledge plea. bullet him would have caused to enter a different In I view of this find his statements self-serving source in his bullet the decisive factor to plea decision enter a incredi- guilty to be inherеntly ble.
If had entered a plea a not guilty jury would have had to return verdict a first (1) unless it found he was not guilty robbery (2) form engaged nullification” “jury its disregarding instructions; a third is possibility this Court have used if might Hough’s case, appealed, to limit its then broad construction the felony-mur- der rule. Hough participant concedes that he was a I fail to robbery, see since current why, sentence is the minimum for first degree murder, later possibilities two trial. justify new
My concurrence in no case, should however, way be viewed as even a semblance condonation the Commonwealth’s action in evi- suppressing this I dence. Indeed fully share the view that action such our civilized repugnant justice notions and de- strongest serves the condemnation. Were I to have was,at found that Hough all I would prejudiced, him a new trial. grant hesitate I do not believe
Because the suppressed evi- dence a relevant factor in his plead decision to view of his life because, he has sentence, I prejudiced, not been concur in the result. joins
Mr. Justice Jones opinion. this concurring