United States v. Rundle

• Decision Date: 20 September 1967
• Docket Number: No. 16102.,16102.
• Citation: 383 F.2d 421
• Parties: UNITED STATES of America ex rel. David ALMEIDA, Appellant, v. Alfred T. RUNDLE, Warden, State Correctional Institution, Philadelphia, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

383 F.2d 421 (1967)

UNITED STATES of America ex rel. David ALMEIDA, Appellant, v. Alfred T. RUNDLE, Warden, State Correctional Institution, Philadelphia, Pennsylvania.

No. 16102.

United States Court of Appeals Third Circuit.

Argued June 22, 1967.

Decided September 20, 1967.

Rehearing Denied November 15, 1967.

Jerome J. Shestack, Echnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellant.

Michael J. Rotko, Asst. Dist. Atty., Philadelphia, Pa. (Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before BIGGS and KALODNER, Circuit Judges, and VAN DUSEN, District Judge.

OPINION OF THE COURT

KALODNER, Circuit Judge.

This appeal is from the Order of the District Court for the Eastern District of Pennsylvania¹ denying the appellant David Almeida's petition for a writ of habeas corpus.

The questions presented are as follows:

(1) Was Almeida deprived of liberty without due process of law because the Commonwealth allegedly obtained his indictment "by the knowing and wilful suppression of evidence and the knowing and wilful presentation of untrue testimony" to the grand jury?

(2) Was the application to Almeida of the rule of Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736 (1947) and Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183 (1949), cert. den. 339 U.S. 924, 70 S.Ct. 614, 94 L.Ed. 1346 (1950), decided subsequent to the homicide which resulted in Almeida's conviction of murder in the first degree, an ex post facto application in violation of the due process clause of the federal Constitution; otherwise stated, was the act for which Almeida was convicted a crime when it was committed and was his conviction therefor in violation of the ex post facto provision of Article 1, § 10 of the federal Constitution?

(3) Was the determination of what constituted murder under the Pennsylvania Penal Code, 18 P.S. § 4701, as applied to Almeida's case, based upon laws too vague and indefinite to support his conviction and therefore a deprivation of his liberty without due process of law?

(4) Does Almeida's sentence to life imprisonment for murder constitute a denial of the equal protection of the laws since the decision in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958)?

(5) Was Almeida's retrial, following a prior grant of the habeas corpus writ on his application, barred by the proscription against "double jeopardy" in the light of the prosecutor's misconduct "going to the integrity of the trial process?"

Discussion of the issues presented must be prefaced by this factual background:

On January 30, 1947, Almeida and two confederates, Hough and Smith, perpetrated an armed robbery of a supermarket in Philadelphia, Pa. Almeida and Hough were each armed with .45 caliber revolvers; Smith had a .22 caliber revolver. As the three men attempted to flee the scene they engaged in a gun battle with police. Cecil Ingling, an off-duty policeman who, by mere coincidence, had also come upon the scene, accompanied by his wife, was killed by a bullet wound in the head while attempting to capture Hough who was firing directly at the police. During a subsequent pursuit of the robbers' car by police, Hough was arrested when he fell out of it as it made an abrupt turn; Smith and Almeida escaped but were later apprehended.

The three men were indicted for the murder of Ingling on April 1, 1947, on the Commonwealth's theory that it was a homicide in the commission of a felony.

Mrs. Ingling and Hough both appeared before the grand jury which returned the indictment for murder, pursuant to which Almeida was later tried in June, 1948, and found guilty of murder in the first degree with the penalty of death fixed by the trial jury.

Hough testified before the grand jury that Almeida fired the shot which killed Ingling, while Mrs. Ingling testified that Smith did so.² It is undisputed that the Commonwealth did not adduce testimony before the grand jury that Ingling was killed by a .38 caliber bullet from a policeman's revolver. At Almeida's trial, in 1948, the Commonwealth adduced the testimony of Mrs. Ingling that the fatal shot was fired by Smith, and the testimony of Hough that it was fired by Almeida. Several weeks after Almeida's conviction, in the trial of Smith, ballistic evidence was brought to light from which it would appear that a fellow-officer of Ingling had fired the fatal shot.

In Almeida's appeal from his conviction, this ballistic evidence was brought to the attention of the Supreme Court of Pennsylvania, which nevertheless affirmed, holding that the evidence as to who fired the fatal shot was irrelevant to Almeida's conviction of first degree murder. Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595. On Almeida's federal petition in 1951 for writ of habeas corpus, the District Court found that the above-mentioned evidence was deliberately suppressed at Almeida's trial, and granted relief. United States ex rel. Almeida v. Baldi, D.C., 104 F.Supp. 321. In affirming, we agreed with the Commonwealth "that the question of who fired the fatal shot was irrelevant to the issue of whether Almeida was or was not guilty of first degree murder," but we held that the evidence was pertinent to the penalty of life or death, which the jury had to decide, and its suppression by the prosecution deprived Almeida of a fair trial, United States ex rel. Almeida v. Baldi, 195 F.2d 815, 819, 33 A.L.R.2d 1407 (1952), cert. den. 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341 (1953). Thereafter, on October 28, 1954, Almeida was arraigned again, entered a guilty plea and received the sentence of life imprisonment which he is now serving.

Almeida did not appeal his life sentence to the Pennsylvania Supreme Court.

In 1961, Almeida filed a petition for a writ of habeas corpus in the Philadelphia Common Pleas Court. It was denied without a hearing, and the Supreme Court of Pennsylvania affirmed. Commonwealth ex rel. Almeida v. Rundle, 409 Pa. 460, 187 A.2d 266 (1963), cert. den. 374 U.S. 815, 83 S.Ct. 1709, 10 L.Ed. 2d 1038.

In 1964, the instant petition for writ of habeas corpus was filed in the court below and present counsel were appointed to represent Almeida at the hearing later conducted by Judge Higginbotham. In his thoroughly considered opinion at 255 F.Supp. 936 (E.D.Pa.1966) Judge Higginbotham exhaustively discussed the five questions presented on this appeal.³ He concluded that they were without merit, and denied Almeida's petition.

Upon review of the record we are of the opinion that Judge Higginbotham did not err.

It would serve no useful purpose to engage in an extended discussion of each of the five questions presented in Almeida's behalf by his court-appointed counsel, in the light of Judge Higginbotham's well-reasoned and comprehensive opinion. We deem it necessary but to say, in disposition of these questions, seriatum, as follows:

As to the first question — was Almeida deprived of due process when he was indicted by a Grand Jury from which the Commonwealth withheld its alleged knowledge that officer Ingling was killed by a bullet from a fellow policeman's gun?

On this score, it is settled law that (1) "an indictment returned by a legally constituted nonbiased grand jury, * * * is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment.", Lawn v. United States, 355 U.S. 339, 349, 78 S.Ct. 311, 317, 2 L.Ed. 2d 321 (1958);⁴ (2) an indictment cannot be challenged "on the ground that there was inadequate or incompetent evidence before the grand jury", Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); and (3) a prosecution is not abated, nor barred, even where "tainted evidence" has been submitted to a grand jury, United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L. Ed.2d 510 (1966).⁵

We gave effect to the foregoing cases in United States v. Grosso, 358 F.2d 154 (3 Cir., 1966). There, the trial court had denied the defendant's motion for the dismissal of his indictment which was premised on the ground that the indictment was predicated at least in part on illegally seized evidence. In rejecting the defendant's contention that the denial of his motion to dismiss the indictment was ground for reversal, we said (p. 163):

"It is well established that an indictment is not open to challenge on the ground that the evidence presented to the grand jury was either inadequate or incompetent".

To the same effect see United States v. Labate, 270 F.2d 122 (3 Cir. 1959), cert. den. sub nom. Sussman, et al. v. United States, 361 U.S. 900, 80 S.Ct. 211, 4 L.Ed. 2d 157; see too, West v. United States, 359 F.2d 50, 55-56 (8 Cir. 1966).

To what has been said may be added that Almeida has not cited a single case in which the withholding of material evidence from the grand jury has either barred prosecution or served as the premise of subsequent invalidation of a conviction.

As to the second question — was the application to Almeida of the rule of Commonwealth v. Moyer, supra, and Commonwealth v. Almeida, supra, an ex post facto application in violation of the ex post facto provision of Article 1, § 10 of the federal Constitution?

That question must be answered in the negative in accordance with the explicit holding more than half a century ago in Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915), that the ex post facto provision of Section 10 of Article 1 of the federal Constitution "is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts". (emphasis supplied).

The third question — as to whether the determination of what constituted murder under the Pennsylvania Penal Code, 18 P.S. § 4701, as applied to Almeida's case, was based upon laws "too vague and indefinite to support his conviction and therefore a...