HIGGINBOTHAM, District Judge.
Relator, David Almeida, seeks a writ of habeas corpus alleging violation of his rights under the Fourteenth Amendment to the United States Constitution. The substance of his allegations for which relief is requested may be categorized as follows: (1) that the act for which he was convicted was not a crime when it was committed and that as a consequence his conviction violates the ex post facto and due process clauses of the Constitution; (2) that the statute under which he was convicted was unconstitutionally vague; (3) that his continued incarceration constitutes a denial of the equal protection of the laws in light of the decision of the Supreme Court of Pennsylvania in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; (4) that he was placed in double jeopardy when he was tried a second time; and (5) that because of an alleged "suppression" of evidence from the grand jury the indictment rendered by that body on April 1, 1947 was null and void.
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.
By reason of the questions which Judge Freedman posed
and the exhaustive research and briefs filed in behalf of the relator, it will be necessary throughout some portions of this opinion to consider alternative arguments made by relator. Some of these alternative arguments require the court to assume arguendo certain intermediate premises which have been rejected by my holdings. Thus, I have had the choice of either writing an opinion which may become too extensive by answering these alternative arguments or not considering any alternative arguments which are inconsistent with any of my holdings.
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.