The opinion of the court was delivered by: HIGGINBOTHAM
After consideration of the oral arguments and a careful review of all of the records and briefs, I am confident that relator's claims do not rise to the level of federal constitutional deprivations and thus his request for relief must be denied and the petition dismissed with prejudice.
On January 30, 1947, the relator and two others perpetrated an armed robbery of a super market in Philadelphia. Almeida was armed with a.45 caliber pistol as was his partner Hough. The third partner, Smith, was armed with a.22 caliber pistol. As the relator and his partners attempted to flee the scene of the crime, a gun battle ensued between themselves and the police during the course of which, an off-duty policeman (Officer Ingling), who by coincidence was present at the scene, was shot and killed.
The Assistant District Attorney in charge of the relator's prosecution knew, when presenting the matter to the grand jury, that a.38 caliber blood-stained bullet had been found near the slain officer's body. The Assistant District Attorney also knew that the ballistic experts had reported that this blood-stained bullet was of a different caliber than the guns used by the felons. The Supreme Court of Pennsylvania concluded the following from this data:
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. Commonwealth ex rel Almeida v. Rundle, 409 Pa. 460, 187 A.2d 266, 267.
There was evidence which indicated that the wound suffered by Officer Ingling was too small to have been caused by a bullet from any of the weapons of the felons.
On the issue of who fired the fatal bullet, the Assistant District Attorney presented to the grand jury only the testimony of the victim's widow and one of Almeida's co-felons who testified that Almeida had fired the fatal bullet. The evidence of the blood-stained bullet was never brought to the grand jury's attention, nor indeed to the first trial court. The relator was indicted for murder in the first degree and was tried and convicted in June of 1948. In accordance with the jury's findings Almeida was sentenced to death.
Several weeks after his conviction, one of the relator's co-felons was brought to trial. At that trial, evidence was introduced, for the first time, pointing to the existence of the blood-stained.38 caliber bullet.
The relator appealed his conviction to the Pennsylvania Supreme Court which was presented with the evidence not made available at his trial. That court after considering the possibility that neither the relator nor his confederates fired the fatal shot held that even if this were proven to be the case, the relator was rightly convicted of first degree murder, and therefore affirmed his sentence. Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949), cert. denied 339 U.S. 924, 70 S. Ct. 614, 94 L. Ed. 1346; rehearing denied 339 U.S. 950, 70 S. Ct. 798, 94 L. Ed. 1364 (1950). Thereafter, Almeida instituted habeas corpus proceedings in the United States District Court for the Eastern District of Pennsylvania alleging that the Commonwealth had deliberately suppressed evidence at his trial. A hearing was held before Judge George A. Welsh who granted the relator a writ of habeas corpus. United States ex rel. Almeida v. Baldi, 104 F. Supp. 321 (E.D.Pa.1951).
On appeal by the Commonwealth, the Court of Appeals for the Third Circuit affirmed the District Court. The Court held that since under Pennsylvania law the jury decides whether the penalty will be life imprisonment or death, "who killed Ingling was a relevant issue, as to penalty to be imposed by the jury at the trial, perhaps the most relevant one." Thus the Court held that 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." 195 F.2d 815, 816, 819, 33 A.L.R.2d 1407. The Court did not address itself to the possible suppression of evidence before the grand jury, and in fact it does not appear that this issue was ever raised. It concluded by noting that "[the] grant of the writ will not keep Almeida from being tried again for he cannot successfully plead double jeopardy." 195 F.2d 815, 825, n. 30.
The relator was again brought to trial on the same indictment; he entered a plea of guilty and was sentenced to life imprisonment. While confined in the state correctional institution, he filed a petition in the state courts seeking a writ of habeas corpus. The petition was denied without a hearing and on appeal the Supreme Court of Pennsylvania affirmed. Commonwealth ex rel. Almeida v. Rundle, 409 Pa. 460, 187 A.2d 266 (1963). The United States Supreme Court denied certiorari.
Having exhausted all of the state remedies available to him, the relator filed a petition for a writ of habeas corpus in this court. On May 1, 1964, Judge Abraham L. Freedman issued a memorandum order in which he noted that the constitutional claims raised by the relator were of sufficient interest and significance to be presented to this court on his behalf. Judge Freedman specified four constitutional questions which were expressly or impliedly raised by the petition and invited counsel to raise any other issue which in his judgment inhered in the petition.
Prior to the filing of briefs and the presentation or arguments, Judge Freedman was appointed to the Court of Appeals and the matter was subsequenty assigned to me.
This problem is presented most dramatically in the relator's contention that his conviction should be reversed because it violates the ex post facto and due process clauses of the United States Constitution. Since, as noted in Part I of this opinion, I find that relator's acts constituted murder as of the time he committed them, his conviction by definition could not be violative of the ex post facto clause or the due process clause as it pertains to prohibiting retroactivity. Nevertheless I will analyze relator's argument (in Part II) and assume arguendo relator's ex post facto premise that the acts were not murder when committed, and thus under such an assumption, I am required to analyze whether the constitutional clauses in issue are applicable. I have made detailed alternative findings and holdings so that hopefully this matter may be terminated in one way or the other upon review; thus any appellate court which may disagree with my "preliminary" holdings will have the opportunity to know what my rulings would be on the alternative arguments. In this way, perhaps the possibility of a remand could be diminished and this protracted matter can finally come to an end upon appellate review.
PENNSYLVANIA LAW OF MURDER IN THE FIRST DEGREE
Relator claims that his "* * * conviction for an act which was not a crime when committed was a violation of his constitutional rights." Thus ab initio, we must attempt to ascertain whether by Pennsylvania law his acts of January 30, 1947, constituted first degree murder. The United States Supreme Court has often emphasized that:
We usually walk on treacherous ground when we explore state law, for state courts, state agencies, and state legislatures are its final expositors under our federal regime. Brady v. State of Maryland, 373 U.S. 83, 90, 83 S. Ct. 1194, 1198, 10 L. Ed. 2d 215 (1963).
In the instant case, an analysis of the Pennsylvania first degree murder statute exposes one to grounds which are probably even more treacherous than usual, because over a period of years the Pennsylvania Supreme Court has announced conflicting principles through different opinion writers: In Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949) Chief Justice Maxey, writing for the majority, said that the court was stating what allegedly had been "the long established " Pennsylvania law of murder in the first degree 362 Pa. 596 at 603, 68 A.2d 595; nine years later, in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, Chief Justice Jones, who had dissented in Almeida, supra, said the "long established" principle as announced in Almeida had actually been a " radical departure from common law criminal jurisprudence." 391 Pa. 486, 137 A.2d 472 at p. 473
The statute under which Almeida was convicted reads as follows:
MURDER OF THE FIRST AND SECOND DEGREE: All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree. 18 P.S. § 4701, Act of June 24, 1939, P.L. 872, § 701; 1959, Dec. 1 P.L. 1621 § 1.
If one frames the issue putting the facts in a light most favorable to relator, the pivotal question in construing the Pennsylvania statute becomes: Has a felon committed murder in the first degree if an innocent third party was killed by the shots of a police officer who was attempting to prevent the felons from escaping the scene of the crime?
Alternatively, the issue could be phrased: Does the felony murder rule encompass a situation when an innocent third party is killed by a shot fired by someone other than the felon or his confederates?
Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949):
At Almeida's original trial, his counsel clearly raised the issue in their 13th point for charge, by requesting the trial judge to instruct the jury "that in order to convict the defendant of the death of Officer Ingling, the jury would have to find that the fatal shot was fired by one of the three robbers."
On appeal, the Supreme Court of Pennsylvania stated that "[such] an instruction would have been in defiance of this court's decision in Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A.2d 736, 741, which decision the trial judge dutifully followed. In that decision handed down on June 30, 1947, this court held in an opinion concurred in by the six judges who heard the argument on appeal, that: 'A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons. * * *" Commonwealth v. Almeida, supra, 68 A.2d 595, at pp. 598-599.
The Supreme Court went on to say "Our decision in the Moyer-Byron case was an application of the long established principle that he whose felonious act is the proximate cause of another's death is criminally responsible for that death and must answer to society for it exactly as he who is negligently the proximate cause of another's death is civilly responsible for that death and must answer in damages for it. * * * These principles apply to both crimes and torts. * * * Courts in the United States, England and Canada have applied the foregoing principles of 'proximate cause' in murder cases, as the cases now to be cited and reviewed in this opinion demonstrate. * * * [whether] the fatal bullet was fired by one of the bandits or by one of the policemen who were performing their duty in repelling the bandit's assault in defending themselves and in endeavoring to prevent the escape of the felons is immaterial. Whoever fired the fatal shot, the killing of Officer Ingling had its genesis in the robbing by the defendant and his confederates of the Acme Market, and in their firing upon the police officers who in the performance of their duty were attempting to take them into custody." 362 Pa. 596, 68 A.2d 595 at pp. 599-600, 601, 602-603.
Commonwealth v. Byron, 357 Pa. 181, 53 A.2d 736 (1947)
Commonwealth v. Almeida cannot be understood without a full exposition of the facts announced in the earlier decisions of Commonwealth v. Moyer and Commonwealth v. Byron. Moyer and Byron, on the night of July 13, 1946, were engaged in a robbery of a gas station in Delaware County. During the course of the robbery, shots were exchanged between the owner of the station, Earl Shank, and the robbers, Moyer and Byron. As a result of the shooting an employee of Shank was killed. Moyer and Byron were convicted of his murder. The second assignment of error when the matter was argued before the Pennsylvania Supreme Court, was based on an excerpt from the charge of the trial court in which the jury was instructed that "[all] of the participants in an attempted robbery are guilty of murder in the first degree if someone is killed in the course of the perpetration of the first named crime. That is the law of the Commonwealth of Pennsylvania." 357 Pa. 181 at p. 188, 53 A.2d 736 at p. 740. The defendants had challenged the Court's instruction and said that the issue in the case was "whether or not the decedent met his death by a wound inflicted by the defendant Moyer or by the garage owner Shank." 357 Pa. 181 at p. 188, 53 A.2d 736 at p. 740. The Supreme Court noted that "[this] assignment of error poses a question whether or not these defendants can legally be convicted of murder if the bullet which killed Zerbe (the innocent victim) came from the revolver fired by the latter's employer in an attempt by him to frustrate the attempted robbery. We have no doubt that even under these facts, which facts the Commonwealth does not concede, the complained of conviction was proper. A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons. This is a question which apparently has never before arisen in this Commonwealth and has arisen elsewhere only rarely." 357 Pa. 181, 188, 189, 53 A.2d 736, 740.
Thus, in Moyer, supra, a crime which occurred more than six months before Almeida's crime occurred, a trial court held that under Pennsylvania law the participants in an attempted robbery are guilty of murder in the first degree "if someone is killed" in the course of its perpetration of the attempted robbery.
This instruction was affirmed by the Supreme Court of Pennsylvania on June 30, 1947, with that Court noting that in legal effect it was irrelevant whether the shot was fired by the felon, or by the intended victim in an attempt to repel the aggression of the felon or felons. The instruction in issue was given by Judge A. B. McDade of Delaware County on January 7, or 8, 1947, more than three weeks before Almeida was engaged in the armed robbery of January 30, 1947.
Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958)
Nine years after the first Almeida opinion the Pennsylvania Supreme Court was presented with a new doctrinal problem. In Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), "[the] defendant was convicted of murder in the first degree with penalty fixed at life imprisonment for the death of his co-felon from a gunshot wound inflicted by a police officer endeavoring to apprehend the two culprits who were attempting to flee the scene of their armed robbery." On its facts Redline is distinguishable from Almeida in that the person killed was not an innocent victim, as was Officer Ingling, but instead was one of the felons perpetrating the armed robbery. The Redline case is relevant in that the 1958 Supreme Court of Pennsylvania said of the first Almeida opinion, that: "The decision in the Almeida case was a radical departure from common law criminal jurisprudence; and the ruling should not be extended by still further judicial enlargement." (391 Pa. 486, 137 A.2d 472, 473.) In Redline, the Court said: "And so, until the decision of this court in Commonwealth v. Almeida, supra, in 1949, the rule which was uniformly followed, whether by express statement or by implication, was that in order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. * * * Until the Almeida case there was no reported instance in this State of a jury ever having been instructed on the trial of an indictment for murder for a killing occurring contemporaneously with the perpetration of a felony that the defendant was guilty of murder regardless of the fact that the fatal shot was fired by a third person acting in hostility and resistance to the felon and in deliberate opposition to the success of the felon's criminal undertaking." (391 Pa. 486, 137 A.2d 472, 476, 477.)
In Redline, the Court partially repudiated the proximate cause theory announced by the Court in Almeida. The Court noted that it was afforded "an appropriate occasion for the repudiation of Commonwealth v. Thomas, supra [382 Pa. 639, 117 A.2d 204] which we now expressly overrule as an unwarranted judicial extension of the felony-murder rule." (391 Pa. 486, 137 A.2d 472, 482.) It said that "Almeida was, itself, an extension of the felony-murder doctrine by judicial decision and is not to be extended in its application beyond facts such as those to which it was applied." (391 Pa. 486, 137 A.2d 472, 482.) The Court noted the factual difference in Redline - a felon being killed there, and an innocent victim in Almeida - and concluded that "[the] limitation which we thus place on the decision in the Almeida case renders unnecessary any present reconsideration of the extended holding in that case. It will be time enough for action in such regard if and when a conviction for murder based on facts similar to those presented by the Almeida case (both as to the performer of the lethal act and the status of its victim) should again come before this court." (391 Pa. 486, 137 A.2d 472, 483.) As a result, the ...