Appeal, No. 316, Jan. T., 1962, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1961, No. 4526, in case of Commonwealth ex rel. David Almeida v. Alfred T. Rundle, Warden. Order affirmed.*fn*
David Almeida, appellant, in propria persona.
Arthur J. Marion and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an appeal from an order in the court below dismissing a petition for a writ of habeas corpus.
In January 1947, Almeida, the appellant, and others engaged in an armed robbery in the City of Philadelphia. An off-duty policeman, who happened to be in the area, was shot and killed while attempting to thwart the escape of the felons. The appellant was arrested, indicted and tried for the crime of murder
committed in the perpetration of the robbery. The jury found him guilty of murder in the first degree and fixed the punishment at death. On appeal, the judgment was affirmed: Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (1949), cert. denied 339 U.S. 924 (1950), rehearing denied 339 U.S. 950 (1950).
Subsequently, Almeida instituted a habeas corpus action in a federal court, alleging deliberate suppression of material evidence by the Commonwealth. The writ was granted: U.S. ex rel. Almeida v. Baldi, 104 F.Supp. 321 (E.D. Pa. 1951), aff'd 195 F.2d 815 (1952), cert. denied 345 U.S. 904 (1953), rehearing denied 345 U.S. 946 (1953). When arraigned before the Court of Oyer and Terminer of Philadelphia County to face trial upon the indictment for the second time (October 28, 1954), Almeida entered a plea of guilty, was adjudged guilty of murder in the first degree by the court and sentenced to life imprisonment. No appeal was taken. It is from this sentence and confinement that he seeks his release in this action.
It appears from the factual background of the case that the victim's death resulted not from a bullet fired by Almeida or one of his co-felons, but rather from a bullet fired from the gun of a fellow policeman of the deceased, who assisted on the scene in attempting to apprehend the criminals.
When Almeida was convicted of the crime involved, the law of this Commonwealth was that where, in the commission of a felony, such as robbery, a third person is killed by one resisting the felon or who is endeavoring to prevent his escape from the scene of the crime, the felon is guilty of murder in the first degree. See, Commonwealth v. Almeida, supra; Commonwealth v. Moyer & Byron, 357 Pa. 181, 53 A.2d 736 (1947); Commonwealth v. Lowry, 374 Pa. 594, ...