Com. ex rel. Hough v. Maroney
| Decision Date | 24 May 1967 |
| Citation | 425 Pa. 411,229 A.2d 913 |
| Parties | COMMONWEALTH of Pennsylvania ex rel. Edward J. HOUGH v. James F. MARONEY, Warden, State Correctional Institution at Pittsburgh, Pennsylvania, Appellant. |
| Court | Pennsylvania Supreme Court |
Alan J. Davis, Asst. Dist. Atty., Michael J. Rotko, Asst. Dist Atty., Arlen Specter, Dist. Atty., Philadelphia, for appellant.
Marjorie Hanson Matson, Pittsburgh, for appellee.
Before BELL C.J., and MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS JJ.
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.
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. 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. [1]
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 garage in the City of Philadelphia, covered the attendant with loaded revolvers, threatened him, Hough (and Almedia 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 [2] 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 shoots with the robbers, including 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. Defender. 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: Commonwealth 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: Commonwealth ex rel. Saddler v. Maroney, 422 Pa. 13, 220 A.2d 846; Commonwealth 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, 56 A.2d page 86):
'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, [3] as we are bidden by statute to do in first-degree murder cases, Act of February 15, 1870, P.L. 15, Sec. 2, 19 P.S. § 1187, and We find the ingredients necessary to constitute murder in the first degree to have been proven to exist.' [4]
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 Ingling, and that Almeida fired the fatal bullet which killed Ingling, and said 'I got the son-of-a-bitch.'
We further note that Smith was tried two weeks later. For the first time it appeared that an Assistant District Attorney had deliberately suppressed evidence which indicated that Ingling was killed by a bullet from the gun of one of the arresting police officers. The jury found Smith guilty of murder in the first degree, but probably because of the hitherto suppressed evidence, sentenced him only to life imprisonment. Smith has never taken an appeal or filed any post-conviction petitions.
Thereafter, Almeida (a) appealed his conviction and sentence to the Supreme Court of Pennsylvania, and (b) also filed with us a petition for a new trial. Almeida contended that certain facts showed that the fatal shot was fired mistakenly by a policeman. This Court affirmed the trial Judge's charge to the jury: "* * * I will charge the jury that it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling, it was still murder.'
'In his charge the trial judge said: 'If that (fatal) shot were fired by anyone, even anyone removed from these three participants, and that shot was fired in the perpetration of a robbery, members of the jury, that is murder; that is murder in the first degree. * * * If one or more persons set in motion a chain of circumstances out of which death ensues, those persons must be held responsible for any death which by direct, by almost inevitable sequence, results from such unusual criminal act. * * * So, if the death of Officer Ingling was the inevitable consequence of the unlawful act, or acts, of the defendant, or the continuation of the unlawful act, or acts, of the defendant, acting in concert- [229 A.2d 916] --for every one who does an unlawful act is considered by the law as the doer of all that follows--if that unlawful act be robbery, and if the result of that act is a killing, members of the jury, that killing is murder."
This Court, in a lengthy Opinion of 43 pages, joined in by five Justices and concurred in by one Justice, carefully and thoroughly considered all the facts and the evidence and the law, and affirmed Almedia's conviction of murder in the first degree and sentence of death. Specifically, the Court Rejected defendant's point for charge below and his contention below and here, that "If you find that the bullet which was fired and killed the deceased was not fired by any one of the three men charged with perpetrating the robbery in question, you cannot convict the defendant of murder in the first degree." Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949); on November 19, 1949 Almeida's petition for reargument was denied by this Court; certiorari 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.
On May 15, ,1950, Almeida filed a petition for a writ of habeas corpus in the Supreme Court of Pennsylvania (361...
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