we must abhor deceit and concealment in its processes. We know that a trial based on false or suppressed evidence is no trial at all. False or suppressed evidence can neither convict nor condemn.
Our law makes inadmissible in evidence any confession by an accused when it is procured by compulsion or without full knowledge by the accused of what he is doing when he makes such a confession. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961); Blackburn v. State of Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960). No less will our law permit an accused to plead guilty where he does not do so openly, voluntarily and knowingly. Kercheval v. United States, supra; United States ex rel. Slebodnik v. Com. of Pennsylvania et al., 343 F.2d 605, C.A.3, 1965. As was said by Judge Freedman in United States ex rel. McDonald v. Commonwealth of Pennsylvania, 343 F.2d 447, at page 451, C.A.3, 1965: "Indeed, the two are inevitably entwined, for a hearing of a plea of guilty is a critical stage in the proceedings against the accused, * * *."
In Pennsylvania at the trial of one charged with murder, it is customary for the trial judge to instruct the jury on the various verdicts of guilty which they may find. He includes instructions for verdicts of murder of the first degree, in the alternative with instructions for verdicts of murder of the second degree and voluntary manslaughter. Commonwealth v. Chavis, 357 Pa. 158, 172, 53 A.2d 96 (1947); Laub's Pennsylvania Trial Guide, § 618.3 et seq. The court should instruct the jury as to their power and duty to determine from the evidence the grade or degree of the crime of which the accused may be found guilty. 41 C.J.S. Homicide § 398 a; Commonwealth v. Kovovic, 209 Pa. 465, 58 A. 857 (1904); Commonwealth v. Sheets, 197 Pa. 69, 46 A. 753 (1900).
It is, therefore, not unreasonable to conclude that if Hough had in 1947 not chosen to plead guilty, he would have had the benefit of instructions given to a jury of its right to impose lesser convictions than what he had himself undertaken. Nor would it have been too improbable for the jury to have found him guilty of a lesser crime than first degree murder, if all of the evidence had been truthfully and fully presented for the consideration of the jury. No less, either, ought we leave to surmise what the three-sentencing judges would have done had the truth been presented to them. It is a serious and proper matter for inquiry even at this date. It is in any event a federal question relating to due process and fair trial.
Because of the prosecutor's high duty of seeing to it that criminal justice is dispensed legally and conscionably in our courts, courts must be the first to condemn, particularly, any law officer who resorts to corrupt practices in the name of justice or for the sake of justice to procure what he considers justice. This follows from the fact that the law has vested much power in prosecuting officers, whether they are district attorneys or United States attorneys. An abuse of such power is constitutionally forbidden that it may not become oppressive. Whatever the motives of the District Attorney were in suppressing the evidence concerning the fatal bullet or in permitting confused evidence to come before the courts, it was done and it was done intentionally, nevertheless. Since the conviction itself is now under attack based on such premises, all of the evidence in this case should be re-examined to determine whether or not the petitioner was deprived of a fair trial and due process of law as guaranteed to him by the Constitution.
However, the question here raised was never presented to the State courts.
The question which follows, secondly, then is, Under the circumstances as here presented, did the petitioner exhaust his State remedies? In all fairness to the State courts, this question should be first answered. In the "Petition For Writs of Coram Nobis and of Habeas Corpus" to the Court of Common Pleas of Philadelphia, No. 3489 December Term, 1959, the question as it was presented was on the changed attitude of the Pennsylvania Supreme Court as reflected in the then recently decided Redline case (391 Pa. 486, 137 A.2d 472), regarding the Pennsylvania felony-murder doctrine. In the "Brief For Appellant", before the Supreme Court of Pennsylvania at page 4, while mention was made of the evidence deliberately suppressed by the Commonwealth, the reference was made in relation to the character or degree of the penalty.
At page 5 of the typewritten brief, the petitioner presented the matter in this way:
"The request for the granting of the writ of habeas corpus raises the more fundamental question of whether the continued incarceration of this appellant on a First Degree Murder charge can be sustained consistently with due process under either the Fourteenth Amendment or the similar provision of the Pennsylvania Constitution in view of the changed attitude of this Court toward the felony-murder doctrine."
As a second ground, the typewritten brief, at page 15, raises the question of suppression of material evidence by the prosecuting officials as an independent ground for relief in mitigation of the penalty, but not as an out-and-out attack upon the validity of the basic judgment of conviction.
This may present a thin thread of difference - but a difference nevertheless. Were the State courts ever faced with the same question which is here presented before me? The previous attack by Hough was on the degree and justification of the sentence which he received as reflected by the Redline and Almeida cases, rather than an attack on the substance of the conviction. Under this circumstance, Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), would be controlling. In Brady, the petitioner had been convicted of first degree murder. Brady complained of suppressed evidence, and the Supreme Court held that such evidence was pertinent only as it affected the penalty.
In sum total the records relating to all the Pennsylvania State courts indicate that the question of the validity of the judgment of conviction as affected by false or suppressed evidence never had been placed before them for a determination.
In a search of all of the records, I find the following, as it was set out in the application to the United States Supreme Court for a writ of certiorari to the Supreme Court of Pennsylvania, Commonwealth ex rel. Hough v. Maroney, 366 U.S. 971, 81 S. Ct. 1936, 6 L. Ed. 2d 1260, certiorari denied. At page 2 of the typewritten application this is contained:
" QUESTION PRESENTED FOR REVIEW