Com. ex rel. Smith v. Myers

• Decision Date: 30 January 1970
• Citation: 438 Pa. 218,56 A.L.R.3d 217,261 A.2d 550
• Parties: , 56 A.L.R.3d 217 COMMONWEALTH of Pennsylvania ex rel. James SMITH, Appellant, v. D. N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 550

261 A.2d 550

438 Pa. 218, 56 A.L.R.3d 217

COMMONWEALTH of Pennsylvania ex rel. James SMITH, Appellant, v. D. N. MYERS, Superintendent, State Correctional Institution Graterford, Pennsylvania.

Supreme Court of Pennsylvania.

Jan. 30, 1970.

Herman I. Pollock, Defender, Melvin Dildine, Chief, Appeals Div., Ellen Q. Suria, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

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 co-felons, Almeida and Hough, rest are well known to this Court ¹ and to the federal courts. ² 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. ³

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 offduty 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 co-felons.

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 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 thta 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 decided the extremely close factual 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, 250 A.2d at 817: '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).

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 co-felon, David Almeida, in Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (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 page 603, 68 A.2d at pages 599--600 (Emphasis in original). We thus affirmed Almeida's conviction stating at page 607, 68 A.2d at page 601: 'The felonious acts of the robbers in firing shots at the policeman, 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 a famous opinion by the late Chief Justice Charles Alvin Jones, this Court interred Thomas and dealt a fatal blow to Almeida. At the outset of this Court's opinion in Redline, we stated: 'The decision in the Almeida case was a radical departure from cammon law criminal jurisprudence.' The thorough documentation which followed in this lengthy opinion proved beyond a shadow of a doubt that Almeida and Thomas constituted iberrations 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 ⁴ there is no statutory crime of murder, directed us to...