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October 13, 1961

UNITED STATES of America ex rel. Gus Alfred DE MOSS
COMMONWEALTH OF PENNSYLVANIA, County of Philadelphia, and William J. Banmiller, Warden

The opinion of the court was delivered by: DUSEN

Relator was convicted of murder in the first degree in the Court of Oyer and Terminer, Philadelphia County, Pennsylvania, on October 28, 1958. Motions for a new trial and in arrest of judgment were denied and he was sentenced to life imprisonment on June 1, 1959. *fn1" The Supreme Court of Pennsylvania affirmed the judgment and sentence. See Commonwealth v. DeMoss, 1960, 401 Pa. 395, 165 A.2d 14. The Supreme Court of the United States denied a petition for a writ of certiorari on February 20, 1961. The relator is presently serving his sentence in the custody of the respondent at the Eastern State Correctional Institution, Philadelphia.

In the instant Petition (Document No. 1), it is contended that the conviction was unconstitutional under the due process clause of the Fourteenth Amendment because the record does not disclose any evidence whatever of relator's guilt. *fn2" An answer was filed to the Petition (Document No. 5) and a hearing held before the undersigned.

 The case was presented under the following Pennsylvania legal principles, which have not been challenged in this Petition: A criminal conspiracy is an agreement between two or more persons with criminal intent to do an unlawful act, or to do a lawful act by unlawful means. Commonwealth v. Rosen, 1940, 141 Pa.Super. 272, 279, 14 A.2d 833. If there is a conspiracy to commit a felony and another is killed while the common purpose is being carried out, one who has entered the conspiracy but does not personally commit the wrongful act is as equally responsible for the death as the one directly causing it, the act of one conspirator being considered the act of all. See Commonwealth v. Lowry, 1953, 374 Pa. 594, 599, 600, 98 A.2d 733, certiorari denied 1954, 347 U.S. 914, 74 S. Ct. 479, 98 L. Ed. 1070. The absence of the coconspirator from the scene of the felony does not affect his responsibility for the consequences thereof. See Nye & Nissen v. United States, 1949, 336 U.S. 613, 618, 69 S. Ct. 766, 93 L. Ed. 919; Pinkerton v. United States, 1946, 328 U.S. 640, 646-8, 66 S. Ct. 1180, 90 L. Ed. 1489.

 The proof of the conspiracy involved here rested solely on circumstantial evidence, no direct proof of an express concerted plan among DeMoss and the other three men having been presented by the Commonwealth. Circumstantial evidence is intrinsically no different from testimonial evidence when the jury has been properly instructed on the standards for reasonable doubt. It is well established that the commission of or participation in a crime may be proved by circumstantial evidence. Commonwealth v. Lowry, supra, 374 Pa. at page 600, 98 A.2d at page 733. Relator maintains that because the Commonwealth's evidence was circumstantial, it had to be such as to exclude every reasonable hypothesis other than guilt. This contention was specifically rejected by the Supreme Court of the United States in Holland v. United States, 1954, 348 U.S. 121, 139-140, 75 S. Ct. 127, 99 L. Ed. 150. *fn3"

 Relator contends that he was convicted on the theory of guilt by association, which has been consistently rejected by the courts. See, e.g., Ong Way Jong v. United States, 9 Cir., 1957, 245 F.2d 392, 394-396; Commonwealth v. Fasci, 1926, 287 Pa. 1, 3, 134 A. 465. The Commonwealth agrees that guilt cannot be established by mere association, but contends that the cases relied on by relator to support his view are not applicable here and that the relationship between the alleged conspirators, their conduct, the surrounding circumstances and the overt acts of the other conspirators were legally sufficient to justify submission of the case to the jury and to sustain its finding. *fn4"

 DeMoss and Thomas, while working for the Tulsa police department, became acquainted with Raymond Wilson. Both knew of his criminal record. *fn5" DeMoss knew Frank Ellsworth (p. 176a, p. 1222a), who had been convicted of burglary (pp. 881a-882a). Thomas left the Tulsa police department in 1949 and became a member of the Dade County, Florida, Sheriff's office (pp. 169a, 210a). He did not contact DeMoss, who was reassigned from detective to radio dispatcher in 1953 (p. 183a), until about the beginning of 1955, when he began calling the radio dispatcher's room of the Tulsa police department on the direct line (pp. 641a-642a, 650a-653a). It was in January 1955 that Mrs. Rossman, a rich eccentric widow who was known to carry cash on her person (pp. 276a-278a, 281a-282a, 295a-296a, 301a-302a), engaged Thomas to investigate an alleged swindle, visited him in Miami, and thereafter frequently communicated with him (pp. 195a-197a).

 On May 5, 1955, a telephone call was made from DeMoss to Ellsworth on DeMoss' 'non-published' phone (p. 519a). In June 1955, Thomas visited Tulsa *fn6" and DeMoss saw him while he was there (p. 181a). At about the same time, Ellsworth visited the radio dispatcher's room of the Tulsa police department and was introduced to others present there by DeMoss (p. 186a). On June 24, 1955, DeMoss talked to Thomas after having tried unsuccessfully to call one 'Stockey' in Miami. Later that day DeMoss was called by one 'McG * * *' *fn7" and, thereafter, DeMoss made another call to Thomas (pp. 524a-527a). 'Stockey' was the name used by Wilson when he registered at the Vagabond Motel in Miami on June 26, 1955 (pp. 247a-249a).

 On June 26, 1955, a call was made from 'Magee', then at the public phone in the Club 22, Tampa, Florida, to the Tulsa police department radio dispatcher's room (pp. 457a-458a). *fn7" Several hours after this call to Tulsa, Ellsworth and Wilson arrived in Miami and were visited by Thomas (pp. 244a-254a). It was planned by Mrs. Rossman that she leave Philadelphia late in June 1955 and go to Florida to live permanently, but she changed her mind en route and returned to Philadelphia (pp. 304a-306a). *fn8"

 Mrs. Rossman planned to leave Philadelphia for Connecticut in July 1955 and deposit her money in a bank in Connecticut (pp. 282a-284a). She cancelled these plans on the morning of July 3, at which time she feared for her safety (pp. 283a-289a). She spoke to Thomas by phone several times on July 1 and once on July 3 (pp. 440a-444a, 505a). She was murdered in her hotel room on July 3. Her mouth, hands and feet were bound with two-inch adhesive tape (pp. 58a, 59a, 91a).

 Wilson was seen in Philadelphia by various witnesses on July 1, 2 and 3 (pp. 326a-330a, 349a, 359a-364a) and Wilson and Ellsworth were both seen in Philadelphia on July 2 when they made inquires about buying two-inch adhesive tape (pp. 349a-351a). They were registered, under aliases, in a Delaware hotel from 1:31 a.m. to 10:16 a.m. on July 3. Between 9:50 a.m. and 10:03 a.m., a telephone call was placed from the Dade County Sheriff's office to DeMoss in Tulsa (p. 506a).

 On July 4, at 6:43 a.m., Ellsworth checked into the Columbus Hotel in Miami. He made a reservation from the hotel to fly to Tampa, did so, and arrived there at 6:04 p.m. Between 9:27 a.m. and 1 p.m. on July 4, 1955, there were five telephone calls between Ellsworth and/or Thomas in Miami and DeMoss in Tulsa. *fn9"

 DeMoss, who did not work July 4-6 (p. 177a), made reservations to fly to Tampa shortly after receiving a call from Ellsworth at the Columbus Hotel (pp. 581a, 598a, 955a-956a). He was seen in the Club 22, Tampa, that evening between 10 p.m. and midnight in the company of Wilson and Ellsworth (pp. 478a-480a). and received change from the barmaid at the Club to make a telephone call (p. 480a). One 'Moss' called Thomas from the Club 22 at 11:18 p.m. that evening (pp. 454a, 460a). DeMoss made a telephone reservation to go from Tampa to Miami via Eastern Airlines (p. 1017a), left Tampa in the early hours of July 5, and arrived in Miami at 1:46 a.m. (p. 615a). He checked into the Columbus Hotel at 6:05 a.m. and stayed in the same room that Ellsworth had been using the previous day. While there, he hired a safe deposit box in the hotel and also is known to have called his daughter in Texas (pp. 511a, 558-9a). Sometime prior to noon on that day, he was seen in the company of Thomas in the Miami airport ...

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