United States v. Maroney

• Decision Date: 29 October 1965
• Docket Number: Civ. A. No. 62-893.
• Citation: 247 F. Supp. 767
• Parties: UNITED STATES ex rel. Edward J. HOUGH v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania.
• Court: U.S. District Court — Eastern District of Pennsylvania

247 F. Supp. 767

UNITED STATES ex rel. Edward J. HOUGH v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania.

Civ. A. No. 62-893.

United States District Court W. D. Pennsylvania.

October 29, 1965.

COPYRIGHT MATERIAL OMITTED

Marjorie Matson, Pittsburgh, Pa., for Edward J. Hough.

Burton Saltzburg and Arthur J. Merriman, Asst. Dist. Attys., for the Commonwealth.

ROSENBERG, District Judge.

This petition for the issuance of a writ of habeas corpus is now here because of the suppression of evidence of a fatal bullet by an Assistant District Attorney.

The petitioner, Edward J. Hough, here seeks to void a State court conviction on the charge of first degree murder. He is presently incarcerated in the State Correctional Institution at Pittsburgh, Pennsylvania. He avers in his petition that he pleaded guilty to a charge of murder while ignorant of the fact that a police bullet struck down the victim. He asserts that he would not have pleaded guilty if this evidence had not been suppressed and he had known that it was not one of the bullets of his co-robbers for which he believed he was chargeable with murder.

This petitioner's case and that of his two associates, David Almeida and James F. Smith, have received wide attention from both the State of Pennsylvania and Federal courts at various times. This is the first petition presented by Hough to a federal court.

Hough was first sentenced in the Court of Oyer and Terminer, Philadelphia County, at No. 1282 March Term 1947 and the death penalty was imposed. On February 24, 1955, after a long series of battles in the State courts and before the administrative and executive bodies in Pennsylvania, the death sentence was commuted to life imprisonment.

Upon the filing of this petition, I ordered the holding of a hearing at which the petitioner was present with his outstandingly competent counsel, Mrs. Marjorie Hanson Matson. The Commonwealth was represented by two Assistant District Attorneys, Burton Saltzburg, Esquire and Arthur J. Merriman, Esquire, of Philadelphia County.

At the hearing the petitioner's counsel was instructed to freely present the petitioner's case. The only witness was the petitioner himself. He testified in considerable detail of his having become associated with David Almeida and James Smith, and as to what occurred on that fateful day of January 30, 1947. He testified that at approximately 5:00 o'clock in the evening with a stolen car they moved diagonally to the curb and parked with Smith remaining in the driver's seat, in front of the Acme Supermarket at 20th and Fairmount Avenues in Philadelphia; that Hough and Almeida entered the supermarket with guns; that Hough scooped money out of the cash register; that when someone in the store "hollered" something about a holdup, a gun was fired; that Almeida fired several shots; that Almeida left the store first and when Hough came to the car, Almeida was already in it; that in the meantime an off-duty City patrolman named Ingling had come up in a car with his family to shop; that he had pulled his car alongside that of the holdup men; that when Hough came out of the store, police had already pulled up and there was some shooting going on; that it does not appear where Ingling was at the time, but Hough said that he had to jump over the left front fender of Ingling's car in order to get into the getaway car; that Ingling's car had somehow gotten too close to the getaway car and the right hand door of the getaway car became sprung as an attempt was made to back it out; that the getaway car was a coupe in which Smith sat in the driver's seat, and when Hough got to it, Almeida was already in the middle seat; that Hough, in spite of the sprung door jumped into the right hand seat where he was able to hold on for about eight or ten city blocks; that when the getaway car made a left turn around a corner, Hough fell out and started to run away; that he was then caught by the police; that Almeida and Smith made their getaway and were not apprehended until about a year later; that Hough had been drinking before this occurred and at the time of his apprehension was half intoxicated; and that Officer Fox who caught him hit him on the head several times with his pistol and things were rather vague. He then related to the incidents after his arrest, of being taken from place to place and questioned, of his admitting his complicity in the crime of the holdup and of his being told on the first night, immediately after he was arrested, by one Captain Kelly that Ingling was dead. This conversation he related as follows: "Kelly said to me, he said, `you know Ed you're not being held for robbery.' I said, `Well, what am I being held for?' He said, `Murder'." He testified that Officer Kelly and Officer Ahrndt had been questioning him about a .38 caliber gun and of the caliber of Almeida's gun, but that evidently the information he had given them was not what they desired. He was also told by Kelly about the confused statements of the Ingling family as to who had fired the shot which killed Ingling; however, he never knew and no one had ever told him that it was not the bullet of any one of the three holdup men that had struck down and killed Ingling. Even at the coroner's inquest, he said, Mrs. Ingling stated that the man who was riding in the middle fired the shot that killed her husband, and she identified him as Smith; but actually, Almeida was riding in the middle and Smith was driving. A month after his arrest he was taken for arraignment and pleaded not guilty. He was not then represented by counsel. In fact he did not have the benefit of counsel until approximately six or seven days before his trial when Attorney Louis McCabe was appointed by the Court to represent him. He said that he did not discuss the change of plea with his lawyer until the morning of the trial, when his lawyer advised him that he thought a guilty plea would be best. He said his lawyer told him he would go down and talk to Judge Oliver; that he was gone for some time and came back and said that he had talked to Judges Oliver, Crumlish and Cohen, who made no commitments as to what they would do; and that his attorney said "public opinion being what it is, I don't think you stand a chance before a jury, so my advice is to plead guilty before these men who will only consider facts and not emotion." The petitioner then followed his attorney's advice and pleaded guilty. Hough testified that when he did plead guilty, he, himself, believed it was Almeida who had fired the fatal shot. He said he believed this because in all the evidence he had heard at the preliminary hearing and at the coroner's inquest and from the conversations with the various detectives and Captain Kelly, it was so indicated. He testified that there was no evidence offered before his trial before the three judges which would lead him to believe that the fatal shot had not been fired from the gun of one of his co-felons. The three judges sentenced him to suffer the death penalty. Hough testified that it was not until a year or more later when, in the first week of June 1948, Almeida was tried for the crime and when two weeks later, Smith was tried that he subsequently heard "that there was a suppression of evidence that was brought out at Smith's trial, which in effect saved his life." He stated that he did not learn the details of this until 1951 after Almeida had presented his petition for habeas corpus to the United States District Court in Philadelphia.

Hough now asserts that he would not have entered a plea of guilty if he had known all the facts and particularly that which had been suppressed that a bullet from the gun of one of the police had killed Ingling. Does this assertion by the petitioner, under the circumstances, raise any Federal question which would entitle him to habeas corpus relief?

For a long period of time after the hearing I attempted to get from the District Attorney of Philadelphia County the records or copies of the records of the Hough proceedings before the coroner and the police. I did receive the printed paper book of the record in the Appeal from the Judgment and Sentence of the Court of Oyer and Terminer and General Jail Delivery of the County of Philadelphia by Hough to the Supreme Court of Pennsylvania, in which was set out the proceedings, the questions and answers and arguments before the three-judge court which pronounced the sentence of death after the plea of guilty to murder in the first degree. In addition to these, I have studied all the related court records as officially reported.

The record and the chronology of the related events here follow:

1947-Petitioner's plea of guilty heard by a three-judge court. This is set out in the record of appeal as presented to the Supreme Court of Pennsylvania.

1948-Appeal to the Supreme Court. The Supreme Court affirmed the decision of the three-judge court. Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84, 1948.

1955-Petitioner's death sentence was commuted to life imprisonment. Commonwealth ex rel. Hough v. Maroney, 402 Pa. 371, 373, 167 A.2d 303 (1961).

1959-At No. 3489 December Term 1959 in the Court of Common Pleas, No. 7 of Philadelphia County, the petitioner filed for the issuance of a writ of habeas corpus and coram nobis. His counsel in this present proceedings raised the legality of the decision of the three-judge court imposing a death penalty. It was argued at that time that if the victim was killed by a bullet fired from the gun of a policeman, that such constituted an incidental killing under which circumstances the petitioner's sentence under the conviction of murder would not be sustainable on the holding of the Supreme Court of Pennsylvania in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 1958. Upon the refusal of the Common Pleas Court to grant the petition for habeas corpus and coram nobis, an appeal was made to the Supreme...