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October 29, 1965

James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania

The opinion of the court was delivered by: ROSENBERG

 This petition for the issuance of a writ of habeas corpus is now here because of the suppression of evidence of a fatal bullet by an Assistant District Attorney.

 The petitioner, Edward J. Hough, here seeks to void a State court conviction on the charge of first degree murder. He is presently incarcerated in the State Correctional Institution at Pittsburgh, Pennsylvania. He avers in his petition that he pleaded guilty to a charge of murder while ignorant of the fact that a police bullet struck down the victim. He asserts that he would not have pleaded guilty if this evidence had not been suppressed and he had known that it was not one of the bullets of his co-robbers for which he believed he was chargeable with murder.

 This petitioner's case and that of his two associates, David Almeida and James F. Smith, have received wide attention from both the State of Pennsylvania and Federal courts at various times. This is the first petition presented by Hough to a federal court.

 Hough was first sentenced in the Court of Oyer and Terminer, Philadelphia County, at No. 1282 March Term 1947 and the death penalty was imposed. On February 24, 1955, after a long series of battles in the State courts and before the administrative and executive bodies in Pennsylvania, the death sentence was commuted to life imprisonment.

 Upon the filing of this petition, I ordered the holding of a hearing at which the petitioner was present with his outstandingly competent counsel, Mrs. Marjorie Hanson Matson. The Commonwealth was represented by two Assistant District Attorneys, Burton Saltzburg, Esquire and Arthur J. Merriman, Esquire, of Philadelphia County.

 At the hearing the petitioner's counsel was instructed to freely present the petitioner's case. The only witness was the petitioner himself. He testified in considerable detail of his having become associated with David Almeida and James Smith, and as to what occurred on that fateful day of January 30, 1947. He testified that at approximately 5:00 o'clock in the evening with a stolen car they moved diagonally to the curb and parked with Smith remaining in the driver's seat, in front of the Acme Supermarket at 20th and Fairmount Avenues in Philadelphia; that Hough and Almeida entered the supermarket with guns; that Hough scooped money out of the cash register; that when someone in the store "hollered" something about a holdup, a gun was fired; that Almeida fired several shots; that Almeida left the store first and when Hough came to the car, Almeida was already in it; that in the meantime an off-duty City patrolman named Ingling had come up in a car with his family to shop; that he had pulled his car alongside that of the holdup men; that when Hough came out of the store, police had already pulled up and there was some shooting going on; that it does not appear where Ingling was at the time, but Hough said that he had to jump over the left front fender of Ingling's car in order to get into the getaway car; that Ingling's car had somehow gotten too close to the getaway car and the right hand door of the getaway car became sprung as an attempt was made to back it out; that the getaway car was a coupe in which Smith sat in the driver's seat, and when Hough got to it, Almeida was already in the middle seat; that Hough, in spite of the sprung door jumped into the right hand seat where he was able to hold on for about eight or ten city blocks; that when the getaway car made a left turn around a corner, Hough fell out and started to run away; that he was then caught by the police; that Almeida and Smith made their getaway and were not apprehended until about a year later; that Hough had been drinking before this occurred and at the time of his apprehension was half intoxicated; and that Officer Fox who caught him hit him on the head several times with his pistol and things were rather vague. He then related to the incidents after his arrest, of being taken from place to place and questioned, of his admitting his complicity in the crime of the holdup and of his being told on the first night, immediately after he was arrested, by one Captain Kelly that Ingling was dead. This conversation he related as follows: "Kelly said to me, he said, 'you know Ed you're not being held for robbery.' I said, 'Well, what am I being held for?' He said, 'Murder'." He testified that Officer Kelly and Officer Ahrndt had been questioning him about a.38 caliber gun and of the caliber of Almeida's gun, but that evidently the information he had given them was not what they desired. He was also told by Kelly about the confused statements of the Ingling family as to who had fired the shot which killed Ingling; however, he never knew and no one had ever told him that it was not the bullet of any one of the three holdup men that had struck down and killed Ingling. Even at the coroner's inquest, he said, Mrs. Ingling stated that the man who was riding in the middle fired the shot that killed her husband, and she identified him as Smith; but actually, Almeida was riding in the middle and Smith was driving. A month after his arrest he was taken for arraignment and pleaded not guilty. He was not then represented by counsel. In fact he did not have the benefit of counsel until approximately six or seven days before his trial when Attorney Louis McCabe was appointed by the Court to represent him. He said that he did not discuss the change of plea with his lawyer until the morning of the trial, when his lawyer advised him that he thought a guilty plea would be best. He said his lawyer told him he would go down and talk to Judge Oliver; that he was gone for some time and came back and said that he had talked to Judges Oliver, Crumlish and Cohen, who made no commitments as to what they would do; and that his attorney said "public opinion being what it is, I don't think you stand a chance before a jury, so my advice is to plead guilty before these men who will only consider facts and not emotion." The petitioner then followed his attorney's advice and pleaded guilty. Hough testified that when he did plead guilty, he, himself, believed it was Almeida who had fired the fatal shot. He said he believed this because in all the evidence he had heard at the preliminary hearing and at the coroner's inquest and from the conversations with the various detectives and Captain Kelly, it was so indicated. He testified that there was no evidence offered before his trial before the three judges which would lead him to believe that the fatal shot had not been fired from the gun of one of his co-felons. The three judges sentenced him to suffer the death penalty. Hough testified that it was not until a year or more later when, in the first week of June 1948, Almeida was tried for the crime and when two weeks later, Smith was tried that he subsequently heard "that there was a suppression of evidence that was brought out at Smith's trial, which in effect saved his life." He stated that he did not learn the details of this until 1951 after Almeida had presented his petition for habeas corpus to the United States District Court in Philadelphia.

 For a long period of time after the hearing I attempted to get from the District Attorney of Philadelphia County the records or copies of the records of the Hough proceedings before the coroner and the police. I did receive the printed paper book of the record in the Appeal from the Judgment and Sentence of the Court of Oyer and Terminer and General Jail Delivery of the County of Philadelphia by Hough to the Supreme Court of Pennsylvania, in which was set out the proceedings, the questions and answers and arguments before the three-judge court which pronounced the sentence of death after the plea of guilty to murder in the first degree. In addition to these, I have studied all the related court records as officially reported.

 The record and the chronology of the related events here follow:

 1947-Petitioner's plea of guilty heard by a three-judge court. This is set out in the record of appeal as presented to the Supreme Court of Pennsylvania.

 1948-Appeal to the Supreme Court. The Supreme Court affirmed the decision of the three-judge court. Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84, 1948.

 1955-Petitioner's death sentence was commuted to life imprisonment. Commonwealth ex rel. Hough v. Maroney, 402 Pa. 371, 373, 167 A.2d 303 (1961).

 1959-At No. 3489 December Term 1959 in the Court of Common Pleas, No. 7 of Philadelphia County, the petitioner filed for the issuance of a writ of habeas corpus and coram nobis. His counsel in this present proceedings raised the legality of the decision of the three-judge court imposing a death penalty. It was argued at that time that if the victim was killed by a bullet fired from the gun of a policeman, that such constituted an incidental killing under which circumstances the petitioner's sentence under the conviction of murder would not be sustainable on the holding of the Supreme Court of Pennsylvania in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 1958. Upon the refusal of the Common Pleas Court to grant the petition for habeas corpus and coram nobis, an appeal was made to the Supreme Court of Pennsylvania.

 1961-In Commonwealth ex rel. Hough v. Maroney, supra, the question was presented to the State's high tribunal. The Supreme Court determined and stated at page 375 of 402 Pa., at page 306 of 167 A.2d: "Under the felony murder rule as it existed in this State at the time of the appellant's plea of guilty to a charge of murder generally, his conviction of murder in the first degree and his ensuing sentence to death, who fired the fatal shot was irrelevant to the guilt of the felonious conspirator so long as it was fired in aid of or in resistance to the perpetration of the felony." Certiorari was denied by the United States Supreme Court in Commonwealth ex rel. Hough v. Maroney, 366 U.S. 971, 81 S. Ct. 1936, 6 L. Ed. 2d 1260, 1961.

 It will be necessary now to advert to the factual history of the overall case. At the time the three robbers perpetrated the holdup of the Acme Supermarket, the petitioner was armed with a.45 caliber automatic gun. Smith was armed with a.22 caliber pistol and Almeida used a.45 caliber gun. A great deal of confusion occurred at the time of the holdup and while the robbers were withdrawing from the scene. Gun shots had started when the manager of the supermarket reached for two cans of corn to throw at the robbers. Almeida fired at the manager but missed. (Tr. pg. 24a) In the meantime, an off-duty police officer named Cecil Ingling had pulled up alongside the robbers' car and Ingling had gotten out onto the sidewalk. With the withdrawal of the robbers from the store, police had come on the scene and they brought their guns into action. Ingling fell to the sidewalk after a bullet had struck him in the head. Throughout all this confusion there was no doubt that Ingling was shot and eventually died as a result of the gun fire. There was also confusion as to whether Hough fired his gun or not. At his trial, Officer Fox testified that Hough fired a shot at officer Andrew Waters, but the shot missed him (Tr. page 43a). Officer Waters also testified that Hough shot once at him but missed (Tr. pages 65a-66a). When Hough took the stand he denied that he ever fired a shot (Tr. page 87a). Lieutenant Kelly testified that Hough's gun had been fired recently, "within the past forty-eight hours." (Tr. pages 63a-64a). However, we have no indication as to what 48 hour period this refers.

 In escaping Hough was quickly apprehended. Smith and Almeida escaped and were caught about a year later. After some weeks during which time Hough had had no attorney, he pleaded guilty to the charge of murder on the advice of his counsel who had been appointed just before his trial. After Almeida and Smith were caught, Almeida was tried first and found guilty by a jury of murder in the first degree with the recommendation for the death penalty. Commonwealth v. Almeida, 66 Pa.Dist. & Co. R. 351 (1948). Smith's trial followed two weeks later. This trial was not reported.

 At Almeida's trial, Hough testified in favor of the Commonwealth and asserted that it was the bullet from Almeida's gun which had struck down the victim Ingling. This evidence remained unchallenged by the District Attorney who permitted it to go to the jury. This same evidence had been submitted a year earlier by Hough before the coroner.

 In the Smith case, the jury found him guilty of murder in the first degree and recommended life sentence. No further proceedings appear as regards Smith. (402 Pa. at page 373, 167 A.2d 303)

 On appeal, the Supreme Court of Pennsylvania affirmed the conviction and sentence of Almeida. Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183. Thereafter the Almeida case came to the attention of the Federal court when a petition was presented for a writ of habeas corpus to the United States District Court for the Eastern District of Pennsylvania in the case of United States ex rel. Almeida v. Baldi et al., 104 F. Supp. 321, 1951. Judge Welsh after an exhaustive opinion, made findings and provided for the issuance of a writ of habeas corpus. Our Court of Appeals for the Third Circuit affirmed Judge Welsh in United States ex rel. Almeida v. Baldi et al., 195 F.2d 815, 33 A.L.R.2d 1407, 1952. *fn1"

 Since Judge Welsh so aptly detailed the circumstances upon which the present petitioner now stands and which I consider here pertinent, I adopt the following factual excerpts from his opinion, 104 F. Supp., pages 323-324:

"At the trial of Almeida the State produced a number of lead bullets and fragments of bullets. The Court and Jury were led to believe that all the evidence had been produced before them. But there was one bullet in the possession of the State that the State did not produce. It is upon this bullet that the entire case rests. We will state here that all the evidence produced before us came from the State's own witnesses."
* * *
"Officer Ahrndt testified that he hastily rushed to the scene of the crime and got there shortly afterwards and started to look for every bit of evidence. He found the bullets and fragments of bullets we have referred to above. But about 15 feet from where the head of the unfortunate Ingling was lying he found a bloody lead bullet of.38 caliber. It was not fragmentized but distorted in shape showing that it had come in contact with some hard substance. He carefully wrapped it up in a piece of paper and took it to Officer Spangler at headquarters. Officer Spangler is the ballistic expert of the County of Philadelphia, Bureau of Police. Officer Spangler weighed the bullet, measured it, certified that it was of.38 caliber, and had the State chemist make an analysis of the stains on the bullet. The State chemist officially certified that the stains were blood-stains. The police made proper records of all that they did."
* * *
"At the coroner's inquest this bloodstained bullet was not produced nor was any reference made to it in any manner. Neither the Coroner nor the Coroner's physician had any knowledge of it and the Coroner completed his autopsy completely ignorant of this important piece of evidence. The autopsy showed that the bullet that penetrated Officer Ingling's head was.38 in caliber. It was admitted that the police are armed with this type of gun,.38 in caliber and using a lead bullet.
When the District Attorney came to prepare the case for trial he sent for all the witnesses who were known to have any knowledge of the crime. The police called attention to their possession of this bloodstained bullet and the chemical analysis of the stains. The police were told by the District Attorney that it was not necessary for them to produce this at the trial. The police did not produce this at the trial. Counsel for the defendant had no knowledge of the existence of the bullet or its history. The record shows that the trial Judge at the trial did not have the matter of the bullet called to his attention by the District Attorney. Counsel for the defendant could not call for its production, having no knowledge of its existence, and the Court having no knowledge could not rule upon its admission or exclusion. Neither could the Appellate Court. The case went to trial on the evidence and theory of the State that Almeida had fired the shot that killed Ingling and asked the jury to so find. The State produced Hough, the co-defendant. Hough at his own trial swore that he did not know who fired the fatal shot. At the trial of Almeida he testified that, he, Hough, was standing alongside of Almeida and that Almeida within two feet of Ingling fired the fatal bullet and stated 'I got the son of a bitch'. But the gun that Almeida had was of.45 caliber. The.45 caliber bullet Almeida fired into the ceiling of the super-market was not produced at the trial. Its production would have been persuasive with the Jury because it is admitted that Almeida fired the.45 caliber bullet into the ceiling. It was a steel jacketed bullet of.45 caliber and was produced before us and no explanation as to why it was suppressed at the trial. The hole in the head of Ingling was made by a.38 caliber bullet.
The existence of the bloodstained bullet was not discovered until the co-defendant Smith came to be tried. How counsel for defendant learned of this most important piece of evidence was not brought out. Right here we must call attention to a significant and sinister piece of testimony. At the trial of Smith, Almeida having been tried and condemned to death, counsel for Smith subpoenaed Officer Spangler and Officer Ahrndt who had personal and official knowledge of the bloody bullet. The District Attorney told Officer Spangler that if the defendant's lawyer called him to the stand he was not to say anything about the bloody bullet. The officer protested against such instructions and said he would not do anything of the kind; that he had made his report in writing, and that he had a chemical analysis of the bloodstains, and if he was asked he would state the facts. At the trial of Smith the defense subpoenaed these officers. The Assistant District Attorney put Lieutenant Spangler on the ...

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