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decided: May 24, 1967.


Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1965, No. 658, in case of Commonwealth ex rel. Edward Hough v. James F. Maroney, Superintendent.


Alan J. Davis, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attorney, and Arlen Specter, District Attorney, for appellant.

Marjorie Hanson Matson, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this concurring opinion.

Author: Bell

[ 425 Pa. Page 411]

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas granting Hough's petition for a writ of habeas corpus.

[ 425 Pa. Page 412]

Hough's present petition was filed as a result of the Opinion and decision of United States District Court Judge Rosenberg sur Hough's petition for a writ of habeas corpus: United States ex rel. Hough v. Maroney, 247 F. Supp. 767 (W.D. Pa.). Judge Rosenberg mistakenly believed that this Court (a) had merely passed upon "the degree and justification of the sentence which [Hough had] received . . . rather than an attack on the substance of the conviction" and had (b) never passed upon and decided the merits of Hough's contention that under the facts and the pertinent principles of law, he could not lawfully or Constitutionally have been convicted of murder. "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. . . . This may present a thin thread of difference -- but a difference nevertheless." For this reason, Judge Rosenberg naturally held that Hough had not exhausted his State remedies.

The facts, the issues and the record, as well as the recent decision of the Court of Common Pleas, are very unusual and must be reviewed at great length.

Hough is now serving a sentence of life imprisonment for murder. The killing grew out of an armed robbery by Hough and his two confederates, David Almeida and James Smith, in 1947. The three robbers, while attempting to escape from the scene, engaged in a gun battle with the police, during which an off-duty policeman, Ingling, was shot and killed.*fn1

We deem it wise to state in greater detail the facts concerning the robberies, the murder and the relevant issues. On January 30, 1947, the present relator Hough, with Smith and Almeida, entered a public parking

[ 425 Pa. Page 413]

    garage in the City of Philadelphia, covered the attendant with loaded revolvers, threatened him, Hough (and Almeida each) robbed a cash register, and then stole an automobile. During the robbery, Hough hit the attendant on the side of the head with a revolver. They then drove the stolen car to an Acme public superservice market. After parking the car against the curb, Hough and Almeida entered the market, leaving Smith at the wheel. Both drew loaded revolvers, threatened the attendant, and held everyone at bay, terrorized, while they rifled the cash registers. When the manager of the store became excited, yelled "holdup," and started to run toward the rear of the store, Almeida fired at him. This shot missed. Hough and Almeida then ran from the store and jumped into the stolen car which Smith was driving. There was a crowd of people in the street, and Almeida fired a shot into the air as he and Hough ran from the store entrance. Hough fired a shot directly at one of the policemen*fn2 who was only a few yards away but luckily missed him.

At or about the time the robbers arrived at the supermarket, Cecil Ingling, a City patrolman, arrived at the supermarket in his automobile with his family. He was off duty and was in civilian clothes. He also parked his car against the curb in front of the supermarket before alighting to attend to some personal business in the neighborhood. By coincidence, the robbers' car was parked immediately to the left of Ingling's car.

At or about the time the robbers fled from the supermarket, two police cars arrived at the scene and exchanged a fusillade of shots with the robbers, including

[ 425 Pa. Page 414]

    shots in the direction of Ingling who had rearrived at the scene. Ingling was killed by a bullet wound in the head while he was attempting to capture Hough who was firing directly at the police.

Hough was apprehended almost immediately, and later, while represented by able and experienced counsel, entered a plea of guilty generally to an indictment charging murder. Defendant's (relator's) guilty plea in open Court while represented by counsel is a confession of guilt of the crime with which he is charged in the indictment: Com. ex rel. Finnie v. Russell, 422 Pa. 313, 220 A.2d 796. A plea of guilty (when accepted and entered by the Court) is the equivalent of a conviction and a verdict of guilty by a jury: Com. ex rel. Saddler v. Maroney, 422 Pa. 13, 220 A.2d 846; Com. ex rel. Dandy v. Banmiller, 397 Pa. 312, 155 A.2d 197. After a hearing before the trial Court which consisted of three Judges, he was adjudged guilty of murder in the first degree and sentenced to death. Upon appeal to this Court, the judgment of conviction and sentence was affirmed by a unanimous Court: Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84 (1948). Justice (later Chief Justice) Jones, speaking for the Court, said (page 252): "Notwithstanding that the defendant, under the advice of able counsel, pleaded guilty to the murder for which he was indicted and throughout has conceded that it was murder in the first degree, we have reviewed both the law and the evidence in the case,*fn3 as we are bidden by statute to do in first degree murder cases (Act of February 15, 1870, P. L. 15, Sec. 2, 19 PS ยง 1187), and we find the ingredients necessary to constitute murder in the first degree to have been proven to exist."*fn4

[ 425 Pa. Page 415]

Nevertheless, Hough contends that (1) under the later (10 years later) decision of Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), which expressly overruled two prior decisions of this Court and radically changed the law of felony murder, and (2) in view of the after-discovered evidence that the fatal bullet came from the gun of one of the arresting policemen and not from one of his co-robbers, he was not guilty of and could not have been legally convicted of murder.

Almeida and Smith were apprehended about a year later in another State and returned to Pennsylvania. Thereafter a jury found Almeida guilty of murder in the first degree and sentenced him to death. Hough testified as a witness for the Commonwealth (a) at the coroner's inquest and (b) at Almeida's trial, that Almeida shot and killed Ingling. Hough testified that he was standing alongside of Almeida who was within two feet of ...

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