Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
The major question on this appeal is whether the deliberate suppression by the Commonwealth of Pennsylvania of evidence vital to the defense in the trial of a capital case is such a violation of due process as to vitiate those proceedings.
Almeida, with two companions, Hough and Smith, all armed, robbed a supermarket in Philadelphia. A shooting affray occurred and an off-duty policeman, Ingling, was killed. At Almeida's trial the Commonwealth produced evidence tending to show that he had fired the fatal shot. Almeida attempted to show by cross-examination (he did not take the stand), that Ingling was killed by someone else, possibly a member of the police force. The trial judge charged the jury, correctly according to the law of Pennsylvania, Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183,*fn1 that it made no difference whether Almeida, one of his companions, or even the widow of the dead policeman fired the shot, the offense nonetheless would be murder in the first degree if the killing occurred during the course of the robbery. The trial court also correctly charged the jury in accordance with Section 701 of the Act of June 24, 1939, P.L. 872,*fn2 that, if they found Almeida guilty of first degree murder, they should then fix the penalty at life imprisonment or death. The jury found Almeida guilty of first degree murder and fixed the penalty at death.
There is no doubt that the police were armed with .38 caliber Smith and Wesson revolvers. From the evidence at Almeida's trial it appears that Smith was armed with a .22 caliber revolver, Hough with a .45 and Almeida "with a large pistol".*fn3 It is also conceded that Almeida fired the only shot or shots which were fired within the supermarket.
At Almeida's trial, the Commonwealth put a number of bullets in evidence but not a .45 caliber bullet dug from between the roof and the ceiling of the market. This bullet proved that Almeida was armed with a .45. Within a few minutes after Ingling had been killed Ahrndt, a police detective, found on the pavement in front of the market and about a dozen feet back of the place where Ingling's body had lain, a .38 caliber bullet stained with blood. This bullet was not introduced in evidence.
Smith was tried eleven days after Almeida.*fn4 Smith's counsel, in a way not clear from the record, learned of the existence of the .38 caliber bullet and brought out many pertinent facts as to how Ingling had been killed.*fn5 This evidence showed that Almeida was armed with a .45 caliber "horse" pistol, Hough with a .45 caliber automatic revolver, and Smith with a .22; that Hough's .45 caliber automatic and Smith's .22 were recovered by the police while Almeida's .45 caliber revolver was not recovered; that Almeida was the only one of the robbers who fired inside the market and that a .45 caliber bullet was found between the wall and the ceiling of the market. The evidence at Smith's trial showed also that all the police officers (save perhaps Ingling, who was off duty) were armed with .38 caliber Smith and Wesson revolvers; that the .38 caliber bullet found on the pavement in front of the market and back of the place where Ingling's body had lain would fit the police revolvers; that a .45 caliber bullet is 11.4 millimeters in diameter and that the diameter of the entering wound on Ingling's head was 10 millimeters as measured by the Coroner's physician; that a .38 caliber bullet is 9.6 millimeters in diameter and would fit the entering wound in Ingling's head almost perfectly and that while a bullet from Smith's .22 would have gone through the hole Smith's weapon had not been fired. The evidence further disclosed, as we have stated, that the .38 caliber bullet found on the pavement was bloodstained, and that Detective Harry Morris of the Philadelphia Police Homicide Squad had taken a written statement from Officer Mark McGinley that he had fired a shot outside the market and that a man had fallen to the ground; that no other man fell.
Some of the foregoing evidence, particularly that relating to the finding of the .38 caliber bullet, was brought to the attention of the Court of Oyer and Terminer by a paper entitled "Additional Reasons" for a new trial filed by Almeida. The Court noted this evidence as one of the reasons asserted for a new trial and denied the motion but we are not certain that the Court made any direct reference to the evidence. If it did, the reference is set out below.*fn6 At any rate the issue of deliberate suppression of evidence by the Commonwealth was not before the Court.*fn7 Counsel then appealed and also filed a petition for a new trial to the Supreme Court of Pennsylvania under Section 1 of the Act of April 22, 1903,*fn8 setting out, inter alia, the bullet evidence from the Smith trial. The petition was denied, Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183. But again the question of suppression of evidence was not directly raised,*fn9 and, as we will show later, the ambit of the statute is a narrow one. The Supreme Court of Pennsylvania denied the petition and affirmed the judgment of conviction. Again we are not certain whether the Court passed on the questions raised by the evidence relating to the .38 caliber bullet. The only reference in the opinion of Mr. Chief Justice Maxey conceivably pertinent to the new evidence is set out below*fn10 and certainly we cannot presume that the Supreme Court of Pennsylvania through its Chief Justice would so obliquely dispose of the issue of deliberately suppressed evidence vital to the defense. Application for certiorari was made to the Supreme Court of the United States and was denied, 339 U.S. 924, 70 S. Ct. 614, 94 L. Ed. 1346. Rehearing was denied, 339 U.S. 950, 70 S. Ct. 798, 94 L. Ed. 1364.
Almeida then filed a petition for a writ of habeas corpus to the Supreme Court of Pennsylvania which set up in detail the evidence secured at Smith's trial and to which we have referred in the second preceding paragraph. The issue of intentional suppression of pertinent and vital evidence was explicitly raised by the petition. Habeas corpus was denied by the Supreme Court of Pennsylvania in a per curiam opinion and order, no reasons for the denial being stated.*fn11 Application for certiorari was then made to the Supreme Court of the United States and was denied. See 340 U.S. 867, 71 S. Ct. 83, 95 L. Ed. 633.
The petition for habeas corpus was then filed in the court below. A very full hearing was had and a good deal of evidence was received. Much of it paralleled that taken at the Smith trial in the Court of Oyer and Terminer. Some of the evidence was new on the issue of suppression. For example, see the testimony of Detective Ahrndt. Ahrndt stated: 'In our reports, that [.38 caliber] bullet was there all the time - in my report about me finding the bullet and taking it to the chemical laboratory where it remained until the day of each trial, when it was brought down and taken back immediately after the trial." Ahrndt testified that Captain Kelly, who was in charge of the preparation of the case against Almeida, knew of the existence of the bullet and that he, Ahrndt, had taken it to Lieutenant Spangler, the Chief of the Ballistics Bureau of the Philadelphia Police, and that Assistant District Attorney Lipschutz had told him that the bullet "made no difference".*fn12
Lieutenant Spangler*fn13 testified that prior to his taking the stand at the Smith trial, Mr. Lipschutz asked him not to mention the blood on the .38 caliber bullet: "He [Lipschutz] said, when you go to testify * * * [to] give a description of the particular bullet, * * * I don't wish you to mention the blood on the particular bullet * * *." Spangler testified that he replied: "* * * I am not able to do that, especially if I am asked about blood, I got to, because it is on my report.*fn14
Mr. A. M. Adams, one of Almeida's counsel at the trial testified that Mr. Lipschutz was asked at the trial whether there were other bullets than those in evidence; that Mr. Lipschutz did not say "No" but did not inform him or his co-counsel of any other bullet.*fn15 It should be noted also that neither the name of Lieutenant Spangler, the ballistics expert, nor of Dr. W. S. Lampert, in charge of the police laboratory, were listed on the indictment. Detective Ahrndt's name was so listed but, as we have indicated, he was not called as a witness at Almeida's trial. It should be observed also that Detective McGurk testified that he had filed a report with his superior as to finding the .45 caliber bullet between the wall and the ceiling of the market and that Lieutenant Del Torre, Lieutenant Spangler's assistant at the time of the trial, testified that he knew that the .38 caliber bullet was "a very vital exhibit".
In charging the jury at Almeida's trial, Judge Carroll stated: "The District Attorney introduced some thirty or thirty-one witnesses. The District Attorney has the obligation, no matter if it seems to be repetition, to call every witness who knows anything about it, whether that witness favors the Commonwealth's case or is against it, and in the fullest discharge of his duty, Mr. Lipschutz called, I assume, apparently all the witnesses that he could find."*fn16 Even while this statement was being made the law of the case by the trial judge, the Assistant District Attorney knew, if credible witnesses are to be believed, that evidence, which would have demonstrated conclusively that a bullet from Almeida's pistol did not kill Ingling, had reposed in a policeman's pocket throughout the trial. In Commonwealth v. Palermo, 368 Pa. 28, 33, 81 A.2d 540, 542, the Supreme Court of Pennsylvania said by Mr. Justice Ladner: "It is a settled principle of law that the Commonwealth must try a case fairly and that the district attorney is not a 'vindictive seeker for vengeance'. Commonwealth v. Karamarkovic, 1907, 218 Pa. 405, 408, 67 A. 650, 651." While the Court went on to say that the District Attorney must be permitted a wide discretion in determining what witnesses he will call to prove his case, nonetheless that discretion is to be exercised "under the general supervision of the trial judge." Here, the trial judge was not permitted to exercise his discretion. In his concurring opinion in Commonwealth v. Neill, 362 Pa. 507, 520, 67 A.2d 276, 282, Mr. Chief Justice Maxey said: "Of course, if he [the District Attorney] should discover some fact which would militate in the defendant's favor it would be his moral and legal duty to bring this to the jury's attention * * *." See also Commonwealth v. Sarkis, 164 Pa.Super. 194, 199, 63 A.2d 360, 363, citing inter alia, Donaldson v. Commonwealth, 95 Pa. 21. We think that this decision of the Supreme Court of Pennsylvania represented the law of Pennsylvania in respect to this matter, at least until its ruling on the Almeida petition for habeas corpus.
The court below found that Almeida had been overreached and that he had been denied due process of law as guaranteed to him by the Fourteenth Amendment. It issued the writ of habeas corpus. 104 F.Supp. 321. The trial judge reached the specific conclusion that evidence tending to show that Almeida did not fire the fatal shot and that that shot was fired by a policeman was deliberately suppressed by the Commonwealth.*fn17 There is ample evidence in the record to support the findings and conclusions of the District Judge. Who killed Ingling was a relevant issue, as to penalty to be imposed by the jury at the trial, perhaps the most relevant one. Under the Act of June 24, 1939, the jury had the power of life or death over Almeida. In the court below as in this court the Commonwealth contended that the question of who fired the fatal shot was irrelevant to the issue of whether Almeida was or was not guilty of first degree murder, citing the decisions of the Supreme Court of Pennsylvania in Almeida's case and in the Moyer case. With this we agree. But the Commonwealth has never given any answer as to why the evidence to which we have referred, ...