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decided: January 30, 1970.


Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1965, No. 960, in case of Commonwealth ex rel. James Smith v. D. N. Myers, Superintendent.


Ellen Q. Suria, with her John R. Suria, Martin Vinikoor, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Chief Justice Bell.

Author: O'brien

[ 438 Pa. Page 219]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, denying James Smith's petition for a writ of habeas corpus. The facts upon which the convictions of appellant and his cofelons, Almeida and Hough, rest are well known to this Court*fn1 and to the federal courts.*fn2 In addition to vexing the courts, these cases have perplexed a generation of law students, both within and without the Commonwealth, and along with their progeny, have spawned reams of critical commentary.*fn3

[ 438 Pa. Page 220]

Briefly, the facts of the crime are these. On January 30, 1947, Smith, along with Edward Hough and David Almeida, engaged in an armed robbery of a supermarket in the City of Philadelphia. An off-duty policeman, who happened to be in the area, was shot and killed while attempting to thwart the escape of the felons. Although the evidence as to who fired the fatal shot was conflicting in appellant's 1948 trial, the court charged the jury that it was irrelevant who fired the fatal bullet: "Even if you should find from the evidence that Ingling was killed by a bullet from the gun of one of the policemen, that policeman having shot at the felons in an attempt to prevent the robbery or the escape of the robbers, or to protect Ingling, the felons would be guilty of murder, or if they did that in returning the fire of the felons that was directed toward them." To this part of the charge appellant took a specific exception.

The jury convicted Smith of first degree murder, with punishment fixed at life imprisonment. He filed no post-trial motions, and took no appeal. Nor did Smith initiate any post-conviction proceedings until the instant case, despite the litigious propensities of his cofelons.

On February 4, 1966, appellant filed the present petition for a writ of habeas corpus. In his petition appellant raised the following contentions: first, that he had been denied his right to appeal and his right to the assistance of counsel on appeal from his conviction; second, that he was denied his constitutional right to a fair trial by reason of the knowing use of false testimony by the prosecution; and third, that he was denied his constitutional right to a fair trial by reason

[ 438 Pa. Page 221]

    of the trial judge's charge to the jury, quoted above, which was allegedly inconsistent with the rule later announced by this Court in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958).

The court below held two hearings which were confined to the presentation of evidence in support of appellant's contention that he was denied his right to appeal. The other contentions raised by the appellant were briefed and argued to the court below, but not passed on below. The court below held that appellant had knowingly waived his right to appeal, and although the opinion does not discuss the question, the denial of relief necessarily manifested a belief by the court below that appellant was aware of his right to counsel on appeal. The other issues raised by appellant were not mentioned by the court, apparently of the view that they were cognizable only if it appeared that appellant had been denied his right to appeal, and was entitled to an appeal nunc pro tunc.

We reverse, grant the writ, allow an appeal nunc pro tunc, and grant a new trial. Appellant urges that the evidence clearly shows that he was unaware of his right to appeal from the conviction, and of his right to appointed counsel on appeal. On the other hand, the Commonwealth urges the opposite just as strongly. The Commonwealth contends that appellant was well aware of his right to appeal and his right to appointed counsel on appeal, but deliberately declined to appeal because of his fear of receiving the death penalty upon retrial if he should be successful in gaining a new trial. The Commonwealth argues in its brief: "The major consideration in appellant's choice was the possibility of a death sentence on retrial."

In view of the recent decisions in the companion cases of Commonwealth v. Littlejohn and Commonwealth v. Archambault, 433 Pa. 336, 250 A.2d 811 (1969), we need not decide the extremely close factual

[ 438 Pa. Page 222]

    question of why Smith failed to appeal. Littlejohn and Archambault involved defendants who had failed to file post-trial motions or take an appeal because of an alleged fear of receiving the death sentence if successful in obtaining a new trial. In a thorough analysis of the constitutional issues involved, we held that it was violative of a defendant's constitutional rights to be placed in jeopardy of a death sentence in a second trial, once he has been found guilty of murder in the first degree and sentenced to life imprisonment. In Littlejohn both sides agreed that the reason that the post-trial motions were withdrawn was the fear that at a second trial Littlejohn might receive the death penalty. We there stated, 433 Pa. at 349: "A decision not to appeal because of such a fear cannot, as a matter of law, be a knowing and voluntary waiver of the right to appeal." We therefore granted Littlejohn an appeal nunc pro tunc. In Archambault, it was not clear on the record before us whether Archambault's failure to prosecute an appeal was the result of his lawyer's advice that such a procedure would be fruitless or the result of his fear of receiving the death penalty at a second trial. We therefore remanded the case for a hearing on the issue.

In the instant case, it is not clear whether Smith's failure to appeal resulted from his fear of receiving the death penalty on retrial, or from his lack of knowledge about his appeal rights. However, no hearing is necessary, for under either alternative, Smith did not knowingly and voluntarily waive his right to appeal. He is thus entitled to an appeal nunc pro tunc.

Moreover, since the parties have briefed both below and in this Court the issues which would be cognizable on a direct appeal, and since the issue with which we propose to deal involves solely a matter of law, we shall treat the instant proceeding as a direct appeal. See Commonwealth v. Gist, 433 Pa. 101, 249 A.2d 351 (1969).

[ 438 Pa. Page 223]

Appellant urges that he was denied due process by virtue of the trial court's charge that it was irrelevant who fired the fatal bullet. Such a charge was consistent with the dictum of this Court in Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A.2d 736 (1947), and with the holding shortly thereafter in the appeal of appellant's cofelon, David Almeida, in Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (1949). In the latter case, by a stretch of the felony-murder rule, we held that Almeida could indeed be found guilty of murder even though the fatal bullet was fired by another officer acting in opposition to the felony. We adopted a proximate cause theory of murder: "[H]e 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." Almeida, 362 Pa. at pages 603-04 (emphasis in original). We thus affirmed Almeida's conviction, stating at page 607: "The felonious acts of the robbers in firing shots at the policemen, well knowing that their fire would be returned, as it should have been, was [sic] the proximate cause of Officer Ingling's death."

The proximate cause theory was taken a millimeter further by this Court in Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204 (1955). In that case the victim of an armed robbery shot and killed one of the felons, Jackson; the other felon, Thomas, was convicted of the murder.

Thomas was repudiated by this Court in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). The facts there were virtually identical to those of Thomas; a policeman shot one fleeing felon and the other was convicted of murder. In an opinion by the late Chief Justice Charles Alvin Jones, this Court interred Thomas and dealt a fatal blow to Almeida. At

[ 438 Pa. Page 224]

    the outset of this Court's opinion in Redline, we stated: "The decision in the Almeida case was a radical departure from common law criminal jurisprudence." The thorough documentation which followed in this lengthy opinion proved beyond a shadow of a doubt that Almeida and Thomas constituted aberrations in the annals of Anglo-American adjudicature.

Redline began with a rather general review of the entire felony-murder theory. If we may presume to elaborate a bit on that review, we should point out that the felony-murder rule really has two separate branches in Pennsylvania. The first, and the easier concept, is statutory. The Act of June 24, 1939, P. L. 872, § 701, 18 P.S. § 4701, provides, inter alia : "All murder 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." Clearly this statutory felony-murder rule merely serves to raise the degree of certain murders to first degree; it gives no aid to the determination of what constitutes murder in the first place. Redline, pointing out that except for one isolated situation*fn4 there is no statutory crime of murder, directed us to the common law for a determination of what constitutes murder. It is here that the other branch of the felony-murder rule, the common law branch, comes into play. Citing Commonwealth v. Drum, 58 Pa. 9 (1868), the early leading case on murder in the Commonwealth, and IV Blackstone, Commentaries, 198, Redline reaffirmed that the distinguishing criterion of murder is malice. The common law felony-murder rule is a means of imputing malice where it may not exist

[ 438 Pa. Page 225]

    expressly. Under this rule, the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.

The common law felony-murder rule as thus explicated has been subjected to some harsh criticism, most of it thoroughly warranted. It has been said to be "highly punitive and objectionable as imposing the consequences of murder upon a death wholly unintended."*fn5 "An effect wholly unexpected and unconnected with the intention and act of the party, except by accident . . . [is] made the foundation of criminal responsibility."*fn6 Redline at page 494 related that "a widely accepted and quite plausible explanation of the origin of the doctrine is that at early common law many crimes, including practically all, if not all, felonies were punishable by death so that it was of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony." With a history like that it is hardly surprising that the rule has evoked bitter comment referring to it as "a holdover from the days of our barbarian Anglo-Saxon ancestors of pre-Norman days, [having] very little right to existence in modern society."*fn7

A more temperate commentator suggests that the rule should be modified, so that a killing committed during the perpetration of a felony would create merely a rebuttable presumption of intention, rather than the conclusive presumption now created.*fn8 Other opponents

[ 438 Pa. Page 226]

    of the felony-murder rule point out that it is hardly an essential weapon in the Commonwealth's arsenal. Our neighboring state of Ohio has managed quite well without a felony-murder rule since abolishing it over a century ago. See Robbins v. State, 8 Ohio St. 131 (1857).

In fact, not only is the felony-murder rule nonessential, but it is very doubtful that it has the deterrent effect its proponents assert.*fn9 On the contrary, it appears that juries rebel against convictions, adopting a homemade rule against fortuities, where a conviction must result in life imprisonment.*fn10 If added deterrence is desired, the felony-murder rule is not the right approach. The situation was well-analyzed many years ago: "To punish as a murderer, every man who, while committing a heinous offence, causes death by pure mis adventure, is a course which evidently adds nothing to the security of human life. . . . The only good effect which such punishment can produce will be to deter people from committing any of these offences which turn into murders what are in themselves mere accidents. It is in fact an addition made in the very worst way . . . . If the punishment for stealing from the

[ 438 Pa. Page 227]

    person be too light, let it be increased, and let the increase fall alike on all the offenders! Surely the worst mode of increasing the punishment of an offence is to provide that, besides the ordinary punishment, every offender shall run any exceedingly small risk of being hanged."*fn11 To similar effect, Justice Oliver Wendell Holmes, in The Common Law, argued that the wise policy is not to punish the fortuity, but rather to impose severe penalties on those types of criminal activity which experience has demonstrated carry a high degree of risk to human life.*fn12 In this respect, we note the recent amendment to The Penal Code, providing for increased penalties when certain crimes are committed with firearms.*fn13

We have gone into this lengthy discussion of the felony-murder rule not for the purpose of hereby abolishing it. That is hardly necessary in the instant case. But we do want to make clear how shaky are the basic premises on which it rests. With so weak a foundation, it behooves us not to extend it further and indeed, to restrain it within the bounds it has always known. As stated above, Redline, at page 495 et seq., demolished the extension to the felony-murder ...

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