Petition for Writ of Certiorari — Baldi v. United States ex rel. Almeida

| 7 | Office - Supreme Court, U. §.

FILED

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952 ;

No. 264

DR. FREDERICK S. BALDI, Superinrenvent,

PHILADELPHIA County Prison

and

J. W. CLAUDY, Successor tro STANLEY P. ASHE,

Warpen, Western Strate PENITENTIARY,

Petitioners

vs.

UNITED STATES OF AMERICA, Ex REL.

DAVID ALMEIDA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

Frank P. Lawtey, Jr.,

Assistant Deputy Attorney General;

Ranpotpyw C. Ryper, .

Deputy Attorney General;

Francis J. Garrorp,

Deputy Attorney General;

Rosert E. Woopsipe,

Attorney General,

Counsel for Petitioners.

INDEX

Suspsect InpEex

’etition for a writ of certiorari to the United States

Court of Appeals for the Third Cirevit..........

Opinions and orders below....................

FN SNE IEEE ILE EAE, I

ee NS 88 e e

Statutes and constitutional provision involved. .

Constitution of the United States—Amend-

NE Er dh ek alee Skee cs

The Judicial Code, 28 U.S.C.— ...........

Rules of Decision Act............... Ses

a SE Oe eee igs

New Trial on Ground of After-discovered

NNN os Sele hr ease Cale aay ae a

ee re oe ae

Specification of errors to be urged.............

Reasons for granting the writ................

ee REC ae dea DE Seopa a Spt eee antigen

Cases, STATUTES AND AUTHORITIES CITED

Cases:

Adkins v. Smyth, 188 F. 2d 452....................

ne Se eee, Oe Us Wa Ms co a ae bene

Bailey v. Stoutamire, 155 F. 2d 754................

Bernard v. Brady, 164 F. 2d 881, cert. den. 332 U. S.

RSE RP Te ee er ee a ee

eee x PE, BPO MI Ss 6h io os Soe ee ey

eh: ©, ee, Be ES. eee eee rok

Collier et al. v. King, 118 Fla. 866, 160 So. eee

Collins v. Johnston, 237 U.S. 502..................

Commonwealth v. Almeida, 66 Pa. D. & C. Reps. 351,

aff’d. 362 Pa. 596, cert. den. 339 U. S. 924, reh. den.

Ms EE i oc a Ree pee Os

Commonwealth ex rel. v. Ashe, 28 Pa. D. & C. Reps.

573

Page

Se

Or Or He GO

ii INDEX

Page

Commonwealth v. Chambers, 367 Pa. 159, 79 A. 2d

rte gee Sens gS an oie Sy NS aie ve vig Ley st. 28

Commonwealth v. Daily (No. 2) 280 Pa. 59, 124 Atl.

ee pais ates aah wh bik <!e > 23

Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130,

79 A. 2d 585, cert. den. 342 U.S. 887.............. 24

Commonwealth ex rel. Daverse v. Hohn, — Pa. —,

— A. 2d —, cert. den. 342 U. S. 812 (Not re-

I 745 oc ene ss bee eed ew ROMP a CIN Se 24

Commonwealth v. Harris, 351 Pa. 325, 41 A. 2d

ee ee ea is are ek Ct ces ea oo 23, 25

Commonwealth v. Hough, 358 Pa. 247, 56 A. 2d 84... 27

Commonwealth ex rel. Paylor v. Claudy, 366 Pa. 282,

I fon ote ube eee er ey te. 24

Commonwealth ex rel. Sheeler v. Burke, 367 Pa. 152,

eer We ole She Sk wile ss 24

Commonwealth ex rel. Thompson v. Dye, — Pa. —,

~— A. St —- cont. dem. 343 U. B. S29... .... ee. 24

Commonwealth v. Williams, 307 Pa. 334, 160 Atl.

(BRE SEG OU S ie 2 50” 2h Rae eae Ue ae 27

Dentels v. Alien, 192 F. 2d 763................5... 22

Darr v. Burford, 339 U.S. 200. ................5.- 21, 26

Edmondson v. Wright, 177 F. 2d 719, cert. den. 338

se alc ne pute ages pS 22

Ex Parte Adamson, 9 Cir., 167 F. 2d 996, cert. den.

RC ane mw Ligvast ok Tay 24

Ez Parte Royall, 117 U.S. 241...........-......... 26

Frank v. Mangum, 237 U.S. 309........... .. 21, 22, 25, 26

Frazier v. Biles, 196 F. 2d 231...........-......... 22

Gelb et al. v. ” deral Trade Commission, 2 Cir., 144

I a Settee oc ching irs ee OP 5a aw 4 dw FW Soa 28

Goodman v. Swenson, 173 F. 2d 349..............-. 22

Goodwin v. Smyth, 181 F. 2d 498...............--. 22

Gordon v. Scudder, 9 Cir., 163 F. 2d 518, cert. den.

ee aad cain ced tSwee bbe we Ess 24

Gryger v. Burke, 334 U. S. 728...........--5-.+--- 24

Haughey v. Smyth, 170 F. 2d 68............---+--. 22

Hawk v. Olson, 326 U.S. 271. .............- 52-055: 29

Holderfield v. Ragen, 170 F. 2d 189, cert. den. 336

BES i aie SA RM apogee a ee a re 22

Holiday v. State of Maryland, 177 F. 2d 844........ 22

INDEX lii

House v. Mayo, 324 U.S. 42...... . Ae eer ae 21

— v. Dye, 3 Cir., 175 F. 2d 250, 338 U. S.

K ennedy v v. Burke, 3 Cir., 17 WT eees kl xeis 24

Mart v. Lawson, 169 F.2d 1016.................... 22

Monsky v. Warden of Clinton State Prison, 163 F. 2d

7G, Sort, Qi. Gee Us OOD. oe 22

Moore v. Swath, 164 F.2d 463..............052.55. 22

Parker v. Carey, 135 F. 2d 205, 320 U.S. 755........ 22

People ex rel. Kerner, Attorney General v. Circuit

Ct. of Sangamon County et al., 354 Ill. 363, 188

Wie MS ee elon eeu gaan Ge eer hD wee s 24

People ex rel. Kerner, Attorney General v. Circuit

Ct. of Will County et al., 369 Ill. 438, 17 N.E.

Ge ents iG a ee a 24

People ex rel. Stead, Attorney General v. Superior

Ct. of Cook County et al., 234 Ill. 186, 84 N.E. 875. 24

Salenger v. Lotsel, 265 U. 8. 224................... 21

Schechtman v. Foster, 172 F. 2d 339, cert. den. 339

Ses Me Os. Eee ti eK mths bg Penh hes eats 4 22

Skipper v. Schumacher, 118 Fla. 867, 160 So. 357... 24

Spelier v. Allen, 192 F. 24 477...............0.... 22

State ex rel. Galbraith, Attorney General v. Superior

Ct. of Pinal County et al., 22 Ariz. 452, 197 Pac.

NTE RS AUR he Ream ye pic rae ae ey

Steele v. Jackson, 171 F. 2d 4382, cert. den. 336 U. S.

oe ks Maen tie oa a Ok Eee RR Tee ee

United States ex rel. Almeida v. Baldi et al., 104 F.

ee. Dad, GUE, SO B. OO OED. 8. ok es

United States ex rel. Smith v. Baldi, 87 F. Supp.

SE SRSA anipert router near OR tt one ele alee oat

United States v. United States Gypsum Co. et al., 333

Rp A AIG ae RR i ae EL creme gid I a

Walsh v. White, 338 U.S. 804, reversing 174 F. 2d

EIT RAPD ipa: Beara Maan Wig RAS mn aie eines Nea

Weber v. Ragen, 176 F. 2d 579, cert. den. 338 U. S.

Seren: ity hea eee kee ala ee

24

iv INDEX

West v. American Telephone & Telegraph Co., 311

NS ey eee en oa Se

Whete v. Ragan, 324 0.8. 760.....................

Wong Doo v. United States, 265 U. S. 239. .

Woolsey v. Best, 299 U. S. TERE ‘By. a

Statutes :

Revised Judicial Code, 28 U.S. C. Section 2254...

Fourteenth Amendment of the Constitution of the

SP MN oo re aie te ie ge to

Rules of Decision Act, the Act of June 25, 1948, ec.

646, 62 Stat. 944, 28 U.S. C. A., Section 1652......

Federal Rules of Civil Procedure, 28 U. S. C. A.

eNO a a foe ahs oo Cw "clan ik Sacer ahs Secmne bh

Section 1 of the Act of April 22, 1903, P. L. 245, 19

Purdon’s Penna. Statutes Annotated, Section 861.

The Penal Code, Section 701 of the Act of June 24,

1939, P. L. 872, 19 Purdon’s Penna. Statutes Anno-

CU SIE sek SS hes ere dn yee ees

Authorities:

Parker, Limiting the Abuse of Habeas mien cand 8

RE Be cee bars Se idk, Pana Bek Doers Ki

25 Am. Jur., Habeas Corpus, Section 110...........

12 R.C.L., Habeas Corpus, Section 39..............

39 C.J.S., Habeas Corpus, Section 56..............

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

No. 264

DR. FREDERICK S. BALDI, Superivrenvent,

PHILADELPHIA County Prison

and

J. W. CLAUDY, Successor to STANLEY P. ASHE,

Warven, Western Strate PENITENTIARY,

Petitioners

vs.

UNITED STATES OF AMERICA, ex ret.

DAVID ALMEIDA

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The Attorney General of Pennsylvania, on behalf of Fred-

erick S. Baldi, Superintendent, Philadelphia County Prison,

and J. W. Claudy, Warden, Western State Penitentiary,

prays that a Writ of Certiorari issue to review the judgment

entered in this case on March 27, 1952, by the United States

Court of Appeals for the Third Circuit.

2

Opinions and Orders Below

1. The opinion of the Court of Oyer and Terminer of

Philadelphia County, Pennsylvania (App’x. 424-450, 459-

478), is reported in 66 Pa. D. & C. Reps. 351.

2. The opinion of the Supreme Court of Pennsylvania,

affirming the judgment and sentence of the Court of Oyer

and Terminer of Philadelphia County, Pennsylvania

(App’x. 575-642), is reported in 362 Pa. 596, 68 A. 2d 595.

3. The order of the Supreme Court of Pennsylvania re-

fusing a rehearing (App’x. 657) is not reported.

4. The order of the Supreme Court of Pennsylvania re-

fusing a petition for a new trial, under the Act of April

22, 1903, P. L. 245, 19 Purdon’s Penna. Statutes Annotated,

Section 861 (App’x. 662) is not reported.

5. The order of the Supreme Court of the United States

denying certiorari (App’x. 692-693) is reported at 339 U. S.

924,

6. The order of the Supreme Court of the United States

denying a rehearing (App’x. 694) is reported at 339 U.S.

950.

7. The order of the Supreme Court of Pennsylvania re-

fusing a writ of habeas corpus (App’x. 718) is not reported.

8. The order of the Supreme Court of the United States

denying certiorari (App’x. 746-747) is reported at 340 U. S.

867.

9. The opinion of the District Court (R. 389-409) is re-

ported at 104 F. Supp. 321.

10. The opinion of the Court of Appeals (R. 412- 459)

is reported at 195 F.2d 815.

Jurisdiction

The judgment of the Circuit Court of Appeals was en-

tered on March 27, 1952 (R. 441). On June 18, 1952, Mr.

Justice Burton, on application of the Petitioner, entered an

3

order extending the time in which to file a petition for cer-

tiorari to and including August 11, 1952 (R. 440). The

jurisdiction of this Court is invoked under Section 1254 (1)

of The Judicial Code, 28 U. S. C. Section 1254 (1).

Questions Presented

1. Whether a Federal District Court should entertain an

application for a writ of habeas corpus challenging the

Federal constitutional validity of a State criminal judgment

on grounds presented to and adversely decided by (1) the

trial court and the highest State appellate court on direct

appeal, and (2) the highest State court in a collateral post

conviction proceeding and this Court declined to review both

proceedings?

2. Whether habeas corpus in the Federal Courts is an

appropriate method of securing a review of State Court

determinations concerning the materiality of evidence in a

criminal proceeding?

3. Whether, in a habeas corpus proceeding challeaging

the constitutional validity of a State criminal judgment, the

Federal Courts are not required to follow the law of the

ease as established by the prior litigation in the State

Courts?

4. Whether the conclusion that Respondent was denied

due process of law in the proceedings culminating in the

criminal judgment was not based on clearly erroneous find-

ings?

Statutes and Constitutional Provision Involved

Constitution of the United States

Amendment XTV

‘‘Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

+

any law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.’’

The Judicial Code, 28 U. 8S. C.

**§ 2241. Power to grant writ

‘*(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective jurisdic-

tions. The order of a circuit judge shall be entered in

the records of the district court of the district wherein

the restraint complained of is had.

‘*(¢) The writ of habeas corpus shall not extend to

a prisoner unless —

‘*(3) He is in custody in violation of the Constitu-

tion or laws or treaties of the United States; . . .”’

**§ 2254. State custody; remedies in State courts.

‘*An application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that

the applicant has exhausted the remedies available in

the courts of the State, or that there is either an absence

of available State corrective process or the existence

of circumstances rendering such process ineffective to

protect the rights of the prisoner.

‘* An applicant shall not be deemed to lave ‘exhausted

the remedies available in the courts of the State, within

the meaning of this section, if he has the right under

the law of the State to raise, by any available proce-

dure, the question presented,’’

5

ules of Decision Act

Act of Juue 25, 1948, ¢. 646, 62

Stat. 944, 28 U.S.C.A. Section 1652

**§ 1652. State laws as rules of decision

“‘The laws of the several states, except where the

Constitution or treaties of the United States or Acts

of Congress otherwise require or provide, shall be re-

garded as rules of decision in civil actions in the courts

of the United States, in cases where they apply.’’

The Penal Code

Section 701, Act of June 24, 1939

P. L. 872, 18 Purdon’s Penna. Statutes Annotated

Section 4701

‘Section 701. Murder of the First and Second De-

gree. All murder which shall be perpetrated by means

of poison, or by lying in wait, or by any other kind of

willful, deliberate and premeditated killing, or which

shall be committed in the perpetration of, or attempt-

ing 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. The jury before whom any person indicted for

murder shall be tried, shall, if they find such person

guilty thereof, ascertain in their verdict whether the

person is quilty of murder of the first or second de-

en ; ;

‘*Whoever is convicted of the crime of murder of the

first degree is guilty of a felony and shall be sentenced

to suffer death in the manner provided by law, or to

undergo imprisonment for life, at the discretion of the

jury trying the ease, which shall fix the penalty by its

verdict. The court shall impose the sentence so fixed,

as in other cases. * * *”’

6

New Trial on Ground of After-Discovered Evidence

Section 1, Act of April 22, 1903

P. L. 245, 19 Purdon’s Penna. Statutes Annotated

Section 861

‘‘Whenever by petition, supported by after dis-

covered evidence, it shall be made to appear to the

supreme court that there is ground for substantial

doubt as to the guilt of any prisoner convicted of

murder of the first degree, the said court shall have

power to authorize the court of oyer and terminer

in which such prisoner has been convicted to grant a

rule for new trial, nune pro tune, notwithstanding the

expiration of term in which such prisoner was con-

victed and sentenced; and thereupon the said court of

oyer and terminer may, in its discretion, grant and

proceed to hear such rule, as in other cases.”’

Statement

This case presents a most extraordinary situation-—the

invalidation of a State criminal judgment by a single Dis-

trict Judge on grounds which were presented to and deter-

mined by the State courts in direct proceedings following

the verdict, and in a collateral habeas corpus proceeding

following the affirmance, both of which this Court declined

to review.

On January 30, 1947, five and one-half years ago—the

Respondent, David Almeida, Edward Hough and James

Smith, agreed upon a plan to commit armed robbery. They

armed themselves with pistols and revolvers of various

sizes,! went to a public garage, intimidated the garage

1 The evidence in the various trials indicates that the Respondent and

Hough were armed with .45 caliber weapons. A .22 caliber revolver was

found in the abandoned getaway auto with which the District Judge as-

sumed that Smith was armed (R. 400). Hough, in his statement given

to the police about nineteen: hours after the affair (App’x. 802-816) said

(App’x. 813) he did not know whether Smith had one or two guns. The

Court of Appeals was more reserved. On this point, they observed (R.

BA ERIS AS IERIE, I EV ORNS OTST LAY NOLL SNS NT EL MELE IRS He AE EN TI en Ee

=

(

attendant by a display of their firearms and physical force,

stole a coupe automobile, and drove to and parked at the

curb near the entrance of a large grocery mart—the selected

victim. Hough and the Respondent disguised themselves

and entered the store. Smith remained at the auto. Hough

removed money from two cash registers while the Respond-

ent covered the customers and clerks, during which he fired

two shots into the ceiling. Nearby police had been alerted

and were speeding to the scene as Respondent and Hough

fled from the store and entered the stolen vehicle. Just at

that time, Cecil Ingling, a police officer, who was off duty

and attired in civilian clothing, returned to his auto which

was parked directly in back of the bandits’ vehicle. Appar-

ently, apprehending that the Respondent and his compan-

ions were engaged in wrongful conduct, Ingling instinctive-

ly attempted to do what he could to bring them to book

by seizing Hough. While grappling with Hough, Ingling

was shot through the head and fell to the pavement mortal-

ly wounded. Then, the police, who were armed with .38 eali-

ber S & W Special revolvers, fired at the bandits. Smith was

wounded. The bandits, however, managed to elude the po-

lice and sped from the scene with the police in pursuit. A

short distance from the locale of the crime, Hough fell

out of the bandits’ vehicle and was immediately appre-

hended. The Respondent and Smith escaped and were net

apprehended until several months later, following their

robbery of a National Bank in Louisiana, for which they

were convicted and sentenced to thirty-five years in a

Federal penitentiary.

Respondent, Hough and Smith were all jointly indicted

414) “From the evidence at Almeida’. trial it appears that Smith was

armed with a .22 caliber revolver . . .” When Respondent was arrested,

several months later, two .38 caliber revolvers were found in a suit case

together with currency which he and Smith had stolen from a National

Bank in the room which the Respondent was occupying. (R. 384)

jas pa AGAR MPR OR

LEM De MEST PRO g EPP er RR Ky Megs SMe AE Saunt VRE, ee ras a ats

8

for murder. Hough pleaded guilty to murder generally. At

his trial, Leon Ingling (App’x. 764) and Jean Ingling

(App’x. 766), children of the slain police officer and eye

witnesses to the crime, testified that it was the occupant

of the center seat position who shot and killed their father.

Leon identified him as Smith. Hough was found guilty of

murder in the first degree by a three judge court (App’x.

872-879), and was sentenced to death (App’x. 879-880). The

judgment and sentence were affirmed by the Supreme Court

of Pennsylvania (App’x. 881-889, opinion reported at 358

Pa. 247, 56 A.2d 84.

Following the conviction of Respondent and Smith in

Louisiana, they were returned to Pennsylvania for trial

on the murder indictment. Respondent pleaded not guilty.

At his trial, Mrs. Ingling (App’x. 293, 294, 296, 297) and

her two children, Leon (App’x. 301, 302 303) and Jean

(App’x. 299, 300)—all eye witnesses—testified that it was

Smith, the occupant of the middle seat position (App’x.

296, 300), who shot and killed Ingling.* Hough testified that

it was Respondent who was the ‘‘middleman’”’ and who shot

and killed Ingling (App’x. 79), and that Smith who was

driving (App’x. 79, 81, 102) was injured in the head during

the gun battle between the bandits and the police officers

(App’x. 78-79). Dr. Yates testified that he had treated Smith

about three hours after the crime (App’x. 309), for a super-

ficial wound on the forehead above the left eye, not involv-

ing the periosteum (the outer covering of the bone) (App’x.

310) which was about a quarter of an inch wide and two

and one-half inches long (App’x. 312). Dr. Wadsworth, the

Coroner’s physician, who performed the autopsy on In-

gling, testified that the bullet which caused death had passed

2Mrs. Ingling also testified (App’x. 292) “As the officer [the first

pol.ve officer to arrive at the scene] pulled in, put on his brake and put

his ear in neutral, the poor devil [Ingling] disappeared, because of what

I thought was backfire which was a shot.”

9

completely through his head (App’x. 17) ; that he could not,

with any degree of accuracy, tell the caliber of the bullet

(App’x. 18) but that it was probabl« less but not much less

than the wound of entrance—10 mm. (App’x. 17) ; and that

the fatal shot was fired from a minimum distance of three

feet (App’x. 20) which corroborated the testimony of Jean

Ingling (App’x. 299) that her father’s assailant was about

four feet from him when he shot.

The jury found Respondent guilty of murder in the first

degree, and fixed the penalty at death (App’x. 411-412).

The trial judge was satisfied that justice had been done

(App’x. 413-416).

A few days later, Smith, the remaining conspirator, rep-

resented by other counsel, went to trial before another

judge and jury on a plea of not guilty. The evidence was

substantially the same as that given at the trial of the Re-

spondent except (1) Hough testified that Ingling was shot

before the police opened fire (App’x. 1002, 1003, 1022), (2)

Lieutenant Spangler, police ballistics expert, who was called

by the Commonwealth at the request of the defense (App’x.

1315) testified that Police Detective Ahrndt, on the sec-

ond day following the crime, submitted to him a spent .38

caliber S & W Special bullet * which would fit a police weapon

and which he examined (App’x. 1282-1283) and himself

(App’x. 1292) took to the police chemist, (App’x. 1294), (3)

Police Detective Ahrndt who was also called at the request

of the defense (App’x. 1302) testified that a short time

’ This is the bullet which is the very predicate of this proceeding. This

is the bullet which Respondent’s witness, Lieutenant Del Torre, who had

sueceeded Spangler following his retirement, as the police ballistics ex-

pert, testified did not kill Ingling (R. 129, 130, 132). This is the bullet

Dr. Wadsworth, Coroner’s physician for fifty-three years (R. 311-312)

and who in the course of his professional career had performed about

14,000 autopsies (R. 312), and who had performed the autopsy upon

Ingling, categorically testified (R. 313-314) did not kill Ingling and this

testimony was not contradicted.

Perec mr esernnenec cp rec ensete

—

10

after the commission of the crime he had found a spent

bullet on the pavement ‘‘directly as you come out the door’’*

(App’x. 1301), which he, on the following day, took to

Spangler, the ballistics expert (App’x. 1301). He also testi-

fied that he did not know how it got there (App’x. 1300),

or how long it had been there (App’x. 1300, 1301), or when

it was fired (App’x. 1300, 1301). (At the conclusion of

Ahrndt’s testimony, the Prosecuting Attorney objected to

it and asked that it be stricken from the record ‘‘for the

reason there is no evidence how the bullet came there, from

whence it came, how long it was there, or anything else, it

connects no one.’’ (App’x. 1302). The trial judge replied

(App’x. 1302): ‘*That is all right, the jury will under-

stand.’’), (4) Dr. Lampert, the Police Chemist, the only

witness called by the defense, testified that Spangler had

submitted to him a bullet (App’x. 1311), and that there

was blood upon it (App’x. 1311) and (5) Police Detective

Morris, on cross-examination (App’x. 1243-1246), read a

statement which he had taken about three hours after the

crime from Officer McGinley who, the Respondent has

claimed, fired the fatal shot in which McGinley stated

(App’x. 1244), ‘‘I got out of my car and pulled my gun

and I saw one man trying to get in the driver’s side of the

* Strangely, this fact, it was asserted in the Respondent’s brief sur

mction for a new trial (App’x. 1392), brief sur appeal (App’x. 485),

petition for certiorari (App’x. 669), petition for habeas corpus in the

Supreme Court (App’x. 699) and the District Court (R. 7) raised

a very strong inference that Ingling was killed by a bullet from a police

officer’s weapon because “if a line +vere drawn from the place where

McGinley was standing when the saooting took place, thence to where

Ingling was standing when he wus shot, and then to where the bullet

was found, such a line would be a straight one” and because it was “a natu-

ral resting place for the bullet which had passed through Ingling’s head.”

At the hearing in the District Court, Ahrndt, a witness for Respondent,

however testified (R. 56) that he found this bullet ten feet east of the

door “directly on a line where the body was laying.” _ This material vari-

ance, alone, completely shatters the Respondent’s theory as presented in

his application to the District Curt.

11

holdup car which was a blue coupe and so I fired from

behind my car and he fell to the ground. He may have

ducked.’’ Smith was found guilty of murder in the first

degree with life imprisonment.

A motion for a new trial was filed, assigning as reasons

therefor, inter alia, (Pars. 10, 11 and 12, App’x. 422-424)

that Respondent had been denied his constitutional right

to a fair and impartial trial as the result of the prosecutor’s

failure to produce evidence at his trial which had been

produced at the subsequent trial of Smith, his co-defendant.

The issues raised in the motion were presented to the court

en bane, composed of Carroll, J., the trial judge, MacNeille,

P. J., and Gordon, P. J., in written form (App’x. 1337-1343),

and oral argument (App’x. 434, R. 182, 185, 186, 191, 192).

A new trial was refused (App’x. 424-450), Gordon, P. J.,

dissenting (App’x. 459-478), opinion reported at 66 Pa.

D. & C. Reps. 351. Judge Carroll, speaking for the major-

ity (App’x. 434), said: ‘‘In proper time following the ver-

dict a motion for new trial was filed on the basis of alleged

errors in the charge, viz., the failure of the Commonwealth

to call certain witnesses and to produce certain evidence.

... We have had the benefit of oral argument and written

briefs on all the points thus raised and have given them

the careful consideration which our duty commands and

our conscience dictates. After the fullest deliberation a ma-

jority of the court has come to the conclusion that the rea-

sons advanced are insufficient for us to set aside the jury’s

verdict and accordingly the defendant’s motion must be

denied.’’ (Emphasis supplied) President Judge MacNeille

concurring (App’x. 444), said: ‘‘ Defendant has filed some

thirteen reasons for a new trial. Each has been carefully

considered and has been found to be without merit.’’ (Em-

phasis supplied)

An appeal was then taken to the Supreme Court of Penn-

sylvania (App’x. 1-539) in which the Respondent referred

12

at large in his history of the case (App’x. 485), and argu-

ment (App’x. 526, 527, 531) to the evidence in Smith’s trial.

The trial court’s overruling of Reasons, 10, 11 and 12, for

a new trial which alleged denial of the constitutional rights

on the very ground asserted in the District Court were as-

signed as error (App’x. 492-495). The Statement of Ques-

tions Involved (Pars. 3, 4, App’x. 481) specifically compre-

hended those assignments which were argued in the Re-

spondent’s brief (App’x. 523-532)° and orally to the

court (R. 191, 192, 195). They were also argued by the

prosecutor (Par. 4, App’x. 562-568) in his brief, at least,

and it is presumed that he also argued them orally. (The

prosecuting attorney died before the collateral proceedings

were instituted in any of the courts.)

The Supreme Court of Pennsylvania considered the facts

set out in the History based on the Smith Case * and in an

5“Tt might be argued, if the defendant’s first error is dismissed, that it

would make no difference whether the bullet which killed Ingling was from

a policeman’s gun or not. However, even conceding this point on the law,

there is no doubt that such would have affected the penalty. The verdict

in the Smith Case proves this conclusively, as does also the fact that the

jury in the Almeida Case was out two hours, and the jury in the Smith

Case out about sixty-eight hours.” (App’x. 528)

“Since the theory of the defendant’s case was that the fatal bullet was

wot fired by the three hold-up men, but rather mistakenly by a policeman,

and that this fact either eliminated the element of murder in the first degree

or should be considered in reducing the penalty from death in the electric

chair to life imprisonment, it is easy to see how important this evidence was

to the defendant.” (App’x. 530, 531)

*This is evident from the statement in the opinion (App’x. 577)

“In behalf of Almeida his counsel cite certain facts which they contend

‘raise the very strong inference that the fatal shot was fired mistakenly

by a policeman’”, which was taken from the following statement in Re-

spondent’s History of the case (App’x. 485): “At the trial of Smith,

Lieutenant Spangler of the Philadelphia Detective Bureau testified that

a .38 calibre bullet was found in back of the place where Ingling had been

standing when shot; and Dr. Lambert, employed as a chemist by the City

of Philadelphia, testified that there was blood on the .38 calibre bullet

(Smith’s Trial, N. T. 362). If a line were drawn from the place where

McGinley was standing when shooting, thence to where Ingling was stand-

ing when he was shot, and thence to where the bullet was found, such a

13

exhaustive opinion (App’x. 575-634) overruled all assign-

ments of error (App’x. 633) and remitted the record ‘‘to

the court below so that the sentence imposed may be car-

ried out’’ (App’x. 633). (Emphasis supplied) An exhaus-

tive petition for reargument (App’x. 643-656) was filed

in which it was alleged that the opinion of the Supreme

Court failed to discuss the assignments of error and the

section of the Respondent’s brief ‘‘concerning suppression

of evidence’’ (App’x. 643, 644) and ‘‘As the assignments

of error point out, the suppression of evidence in this case

constitutes a denial of petitioner’s [Respondent’s] consti-

tutional rights’’ guaranteed by the Constitution of Pennsyl-

vania and the Fourteenth Amendment of the Constitution of

the United States (App’x. 644). Simultaneously, a petition

for a new trial, under Section 1 of the Act of April 22, 1903,

P. L. 245, 19 Purdon’s Penna. Statutes Annotated 861, was

filed in the same court (App’x. 658-661). Both petitions

‘thaving been considered by the court’? were refused

(App’x. 657, 662).

The Respondent then filed in this Court a petition for

certiorari (App’x. 664-691), in which under the caption

‘‘Summary Statement of the Matter Involved’’ (App’x.

664-677), extensively set forth all of the pertinent facts

upon which the contention of ‘‘suppression of evidence’’

was based. He stated (App’x. 674-677): ‘Petitioner

[Respondent] filed additional reasons in support of a new

trial after the Smith trial was completed . . . since by then

it was apparent that the prosecuting authorities had sup-

pressed vital evidence at petitioner’s trial. . . . In his ap-

peal to the Supreme Court of Pennsylvania, petitioner [Re-

spondent] charged in assignments of error, four through

seven, that his conviction and sentence of death, after a trial

line would be a straight one. It would raise the very strong inference

that the fatal shot was fired mistakenly by a policeman.” (Emphasis

supplied.)

14

marred by the prosecuting authorities’ suppression of ma-

terial evidence, denied to him the rights preserved by the

Fourteenth Amendment to the Constitution of the United

States. . . . Moreover, petitioner’s [Respondent’s] counsel

stressed this issue at pages 40 to 48 of his brief before the

Pennsylvania Supreme Court. . . . Petitioner [Respond-

ent] filed . . . a petition for reargument and a petition for

a new trial because of after-discovered evidence. . . . Those

petitions again urged that the conviction and sentence of

death after a trial at which material evidence had been

suppressed by the prosecuting authorities was in violation

of the constitutional rights under the Fourteenth Amend-

ment to the Constitution of the United States. . . . The evi-

dence was material, if not to the guilt then to the punish-

ment of petitioner [Respondent].’’ (Emphasis supplied)

As a basis of this Court’s jurisdiction, it was asserted

(App’x. 678): ‘‘In the Supreme Court of Pennsylvania

petitioner [Respondent] specifically claimed under the

Fourteenth Amendment of the Constitution of the United

States his right not to be deprived . . . of his life .. .

without due process of law.’’ Only one question was

presented in the petition for certiorari (App’x. 678) viz.,

“‘Does suppression of evidence by the prosecuting authori-

ties in a capital case, when such evidence is material to fix-

mg the sentence at either life imprisonment or death, de-

prive the petitioner [Respondent] of his life and his right

to a fair trial without due process of law as preserved to

him by the Fourteenth Amendment to the Constitution of

the United States?’’? (Emphasis supplied) It was stated

therein, under the caption ‘‘Reasons Relied Upon for Al-

lowance of Writ’’ (App’x. 679), ‘‘This case raises an im-

portant constitutional question in the state administration

of criminal law which has never been squarely passed upon

by this Court. The Supreme Court of Pennsylvania has

decided this substantial federal question contrary to the.

me nore sees

il

15

analogous decisions of this Cuurt, and has affirmed a judg-

ment and sentence of death on the basis of a record clearly

violative of due process.’’ (Emphasis supplied)

Certiorari was denied (App’x. 692-693). A petition for

rehearing (App’x. 1379-1391) was then filed in which it

was stated, inter alia, (App’x. 1383-1384) the Respondent

‘‘moved for a new trial on the basis 0;' suppressed evidence.

... The plea was addressed to the ccurt en banc and to the

Pennsylvania Supreme Court on tw occasions. . . . In his

petition for reargument and his motion for a new trial,

based on after-discovered evidence, petitioner [Respond-

ent] then pointed out to the Supreme Court that even

though the killing might have been murder, the introduction

of the evidence that was suppressed would undoubtedly

have resulted ina different penalty. . . . Finally, this Court

was asked to review the case solely on the ground that a

brazen suppression of evidence by the prosecution in a case

like this contravenes the rule requiring that one should not

be deprived of his life without due process of law.’’ ‘‘The

petitioner [Respondent] now asks for the last time that he

be given a trial in which all the material facts may be

judged fairly.” (Emphasis supplied) The rehearing was

refused on May 1, 1950, 339 U. 8. 950.

An application for commutation of sentence was filed

with the Pennsylvania Board of Pardons, and the issue of

suppression of evidence argued (R. 188). Before the ap-

plication was decided, the Respondent filed a petition for a

writ of habeas corpus in the Supreme Court of Pennsyl-

vania (App’x. 695-709), in which there was set forth all of

the pertinent facts and averring, inter alia, (1) he was con-

fined ‘‘under sentence of death unlawfully imposed in vio-

lation of the due process clause of the Fourteenth Amend-

ment to the United States Constitution’’ (Par 1 App’x. 695-

696); (2) ‘‘This Court affirmed the conviction (362 Pa.

596) but did not pass on the matters raised in this Peti-

16

tion’’ because the ‘‘pertinent facts were not in the record

of Relator’s [Respondent’s] trial, and therefore were not

before this Court’’ (Par. 1, App’x. 696); (3) ‘‘The facts

herein alleged perhaps raise no doubt as to Relator’s [Re-

spondent’s] guilt but go only to the issue of whether Rela-

tor’s [Respondent’s] trial was so fundamentally unfair

as to oust the jurisdiction of the court and whether facts

bearing on penalty were suppressed’’ (Emphasis supplied)

(Par. 1, App’x. 696); (4) ‘‘To this day no court and no

opinion writer has answered the serious question which

Relator [Respondent] raised by this petition nor have the

facts ever been denied by his adversaries’’ (Par 1, App’x.

696) ; (5) ‘*The facts which follow were brought out at the

trial of Smith. After Ingling wes reinoved to the hospital

Detective Ahrndt found a spent bullet on the pavement

directly outside the door of the market, a natural resting

place for the bullet which had passed through Ingling’s

head. The next day he took the bullet to Lieutenant Spang-

ler, the police ballistics expert, for ballistics examination

(Smith R. 361, 362). Lieutenant Spangler examined the

bullet and found that it was a .38 S & W Special which

would fit a police Special .38 (Smith R. 346, 347). Lieu-

tenant Spangler promptly took the bullet to Doctor Charles

Lampert, the police chemist, who examined it and found

that ‘There was blood upon that bullet’ (Smith R. 356, 371).

Although the prosecution knew the facts stated in the pre-

ceding paragraph before Relator’s [Respondent’s] trial,

and also knew that only the police carried .38 caliber weap-

ons, the prosecution kept the names of the police ballistics

expert and the police chemist off the list of witnesses en-

dorsed on the Bill of Indictment.’’ (Emphasis supplied)

(Pars. 6, 7, 8, App’x. 699-700) ; (6) ‘‘The action of the pros-

ecution in suppressing that evidence and each part of it

was fundamentally unfair ... It ousted the jurisdiction of

the trial court to proceed to verdict and judgment of sen-

Relay spe ree

17

tence .. .’’ (Par. 19, App’x. 703); (7) ‘‘Relator’s [Re-

spondent’s] trial centered aro~nd the issue of which pen-

alty should be imposed for murder of the first degree.

Therefore, the suppressed evidence was material even if it

is the law.that Relator [Respondent] is guilty of first degree

murder iadiaiasahan that a police officer killed Ingling .. .”’

(Emphasis supplied) (Par. 20, App’x. 703-704); (8) ‘(In

Pennsylvania the jury actually fixes the penalty for first

degree murder ... If the suppressed evidence had been

known to the jury at Relator’s [Respondent’s] trial, there

would have been a strong probability that the jury would

have fixed the penalty at life imprisonment .. . The jury in

Smith’s case did exactly that when the defense in that case

sueceeded in piercing the iron curtain behind which the

prosecution had concealed material evidence.’’ (Emphasis

supplied) (Par. 21, App’x. 704); (9) ‘‘It is the law of

Pennsylvania that in a first degree murder case the jury

is entitled to know all the circumstances of the crime in

order to exercise the discretion which the Act of June 24,

1939, P. L. 872, see. 701, 19 P. S. 4701, gives the jury in fix-

ing the penalty. Commonwealth v. Wooding, 355 Pa. 555,

559. By wilfully suppressing evidence of the material

facts, which evidence was not cumulative, the prosecution

prevented Relator’s [Respondent’s] jury from knowing all

the circumstances. This action on the part of the prosecu-

tion violated the due process clause of the Fourteenth

Amendment to the Constitution of the United States and

ousted the 7 ° liction of the trial court to proceed to ver-

dict and judgment of sentence.’’ (Emphasis supplied)

(Par. 29, App’x. 706)

An answer to the petition for a writ of habeas corpus

(App’x. 710-717) was filed averring, in substance: (1) the

isssue raised by the petition was res judicata and (2) the

evidence alleged to have been suppressed was irrelevant

and immaterial. After full oral argument, the Court en-

18

tered a per curiam order (App’x. 718) as follows: ‘‘We

are of the opinion that the matters complained by the Rela-

tor [Respondent] do not warrant the granting of a Writ of

Habeas Corpus. Writ refused.’’ A stay of execution was

also refused (App’x. 722).

On the same day, without even seeking a stay from this

Court, the Respondent instituted a proceeding in the Dis-

trict Court by filing the identical petition which had been

presented to the Supreme Court of Pennsylvania (R. 1-16,

19-22). A rule to show cause and stay issued (See R. 17-

18). An answer (R. 23-25) was filed averring in substance

(1) the matters complained of had been presented to and

determined by the State Courts and this Court had declined

review and (2) the evidence alleged to have been suppressed

was irrelevant and immaterial. After argument, the Dis-

trict Judge eitered an order (R. 26-27) reciting that the

requirements of Darr v. Burford, 339 U. S. 200, had

been met and that he would ‘‘continue jurisdiction of the

case until the Rule to Show Cause shall have been disposed

of and a decision on the merits renderec after Relator’s

{Respondent’s] Petition for Certiorari has been disposed

of by the Supreme Court of the United States in Common-

wealth ex rel. David Almeida v. Dr. Frederick S. Baldi...

which is docketed at 361 Mise. Docket No. 9 in the Supreme

Court of Pennsylvania’’ and stayed Respondent’s execu-

tion.

A Petition for Certiorari (App’x. 724-745) was then filed

in this Court. It was averred therein, inter alia: (1) ‘‘In

the Supreme Court of Pennsylvania, Petitioner [Respond-

ent] specifically set up and claimed, under the Fourteenth

Amendment of the Constitution of the United States, his

right not to be deprived by the Commonwealth of Penn-

sylvania of his life and liberty without due process of law

(Pars. 1, 19, 29, 31, 34...)’’ (App’x. 735); (2) ‘‘It is clear

that habeas corpus was not denied on the purely state

Ba ei Si PHORM ERE ——

19

ground that it was not an appropriate remedy’? (App’x.

734); (3) *‘ Accordingly this case falls squarely within the

scope of Rule 38 (5) (a) of this Court, being a case where

the state court has decided a Federal question of substance

never heretofore determined by this Court and has decided

it in a way not in accord with the decisions of this Court

most nearly analogous’? (App’x. 737-738). The petition

was denied October 23, 1950 (App’x. 746-747).

A petition to convene a full bench (R. 28-32) to hear argu-

ment on Petitioner’s Motion to Discharge the Rule to Show

Cause (R. 40-44) was filed. No formal action was taken on

that petition. The motion to discharge the rule was dis-

missed. A hearing was had (R. 52-388).

Notwithstanding Respondent vouched for the credibility

of Lieutenant Del Torre—his own witness, and, notwith-

standing the satisfaction of the District Judge and counsel

for the Respondent with the credibility of Dr. Wadsworth

(R. 321-322), and, notwithstanding that the District Judge

felt that he (Dr. Wadsworth) could ‘‘throw more light on

this than anyone I know’’ (R. 329), the District Judge ig-

nored their clear, positive and uncontroverted testimony

(R. 129, 130, 132, 313, 314) that the controversial bullet was

not the bullet which killed Ingling and made the startling

conclusion (Par. 6, R. 407) which the Court of Appeals

labeled a ‘‘Finding of Fact’’ that this bullet ‘would have

warranted the inference that a uniformed police officer

fired the shot which killed Ingling.’* The District Judge

concluded (Par. 6, R. 407) that this evidence was material

and that the Prosecuting Attorney had wilfully suppressed

it at Respondent’s trial in violation of rights secured to

7 This conclusion was based in part on Finding No. 25 which placed

an unwarranted interpretation on Del Torre’s use of the word “mushroom”

(R. 150-151) and totally ignored Dr. Wadsworth’s testimony (R. 326) that

the bullet was not “mushroomed”, as well as the fact that the report

of Spangler (R. 83-84), which the Respondent introduced, contains no

reference to “mushrooming.”

20

him by the Fourteenth Amendment of the Constitution of

the United States (Par. 7, R. 407), and invalidated the

criminal judgment (Pars. 9 and 10, R. 407-408, 409-410).

The Court of Appeals affirmed, holding (1) the findings

of the District Judge were supported by ample evidence,®

(2) the District Judge did not erroneously exercise juris-

diction and (3) the law of the case, as established by the

prior litigation in the State Courts and this Court, was of no

legal consequence.

Specification of Errors to Be Urged

The Court of Appeals erred:

1. In affirming the judgment of the District Court.

2. In holding that the issue of suppression of evidence

was not raised in the trial court on the application for a

new trial.

3. In holding that the trial court, on the application for

a new trial, disregarded the evidence produced at the sub-

sequent trial of Smith—the Respondent’s accomplice.

4. In holding that the Supreme Court of Pennsylvania

did not consider the Respondent’s contentions concerning

the alleged suppressed evidence on the direct appeal and

the ancillary proceedings.

5. In holding that the Supreme Court of Pennsylvania

did not adjudicate the issue of the aileged suppression of

evidence in the post conviction habeas corpus proceeding.

6. In holding that the denial of certiorari by this Court

on two occasions, when the very issue upon which the judg-

8 This was a departure from its prior decision in Johnson v. Dye, 3 Cir.

175 F. 2d, 250, where Chief Judge Biggs, the opinion writer in this ease,

speaking for the Court, said (p. 255): “. . . upon appeal in a habeas

corpus case all questions of law or fact arising upon the record, including

the evidence, are open to consideration by the appellate court and the trial

court has no authority to make conclusive findings of fact as in the ordi-

nary action... and we are not bound by the conclusions of the trial

court ... the hearing before this court is technically de novo.”

SENSU RL Gi dit MAORI RS HATS CERNE EN TSO BR A MUON RINGER EE DN IN ORAL ed al

—

21

ment of the District Court was based, was presented to it,

was of no legal significance.

7. In holding that, contrary to the law of the case, as

established by the prior litigation, and prior State deci-

sions, who killed Ingling was relevant to the issue of the

penalty to be imposed by the jury.

8. In holding that there was ample evidence in the ree-

ord to support the finding that the Prosecuting Attorney

deliberately and wilfully suppressed, at Respondent’s trial,

material evidence which would have warranted the infer-

ence that a uniformed police officer fired the shot which

killed Ingling.

Reasons for Granting the Writ

The most unusual and extraordinary action of the Dis-

trict Judge, in this case, striking down a State criminal

judgment on grounds presented to and rejected by the

State tribunals in both direct and collateral proceedings,

both of which this Court declined to review, in the teeth of

positive, credible and uncontroverted evidence convincingly

demonstrating beyond peradventure that the hypothesis

of the application was totally nonexistent, constitutes a

serious and unwarranted intrusion into and interruption

of the orderly and regular administration of criminal jus-

tice in the State Courts. It renders all prior proceedings

in this Court as well as the State Courts meaningless and

nugatory and relegates them to mere time consuming

devices. The affirmance by the Court of Appeals, in effect,

holds that a District Judge has supervisory powers over the

State Courts end this Court, contrary, the Petitioners feel,

not only to the decisions of this Court® but also the over-

® Frank v. Mangum, 237 U, S. 309; Ashe v. Valotta, 270 U. S. 424;

Darr v. Burford, 339 U. S. 200; see also House v. Mayo, 324 U. S. 42, 48;

White v. Ragen, 324 U. S. 760, 764-765; Salinger v. Loisel, 265 U. S. 224;

Wong Doo v. United States, 265 U. S. 239.

_— —

PLA, PAA RE MEP

22

whelming weight of authority in other Federal jurisdic-

tions,’® and the true intent of Congress in conferring juris-

diction upon the Federal Courts in habeas corpus proceed-

ings."

1. Neither the opinion nor the findings of the District

Judge refiect the restraint and caution which this Court has

reiterated time and again should be exercised in a situa-

tion of this nature. The District Judge obviously was of

opinion that the decision of this Court in Darr v. Bur-

ford, 339 U. S. 200, merely established a meaningless and

inconsequential procedural impediment, not to the assump-

tion of jurisdiction, but to a full-fledged inquiry into the

truth of the bases of the application. The Court of Ap-

peals was more cautious. They avoided the application of

prior decisions of this Court by holding (1) the issue pre-

sented in the application to the District Judge—suppres-

sion of material evidence—was not presented to the trial

court on motion for a new trial’* (R. 417), and, if it were,

10 2 Cir. Monsky v. Warden of Clinton State Prison, 163 F. 2d 978, cert.

den. 332 U. S. 848; Morrison v. Foster, 175 F. 2d 495, 497; Steele v. Jack-

son, 171 F. 2d 432, cert. den. 336 U. S. 939; Schechtman v. Foster, 172 F.

2d 339, cert. den. 339 U. S. 924.

4 Cir. Brown v. Allen, 192 F. 2d 477; Goodman v. Swenson, 173 F. 2d

349; Adkins v. Smyth, 188 F. 2d 452; Bernard v. Brady, 164 F. 2d 881,

cert. den. 332 U. S. 856; Haughey v. Smyth, 170 F. 2d 68; Goodwin v.

Smyth, 181 F. 2d 498; Edmondson v. Wright, 177 F. 2d 719, cert. den. 338

U. S. 944; Holiday v. State of Maryland, 177 F. 2d 844; Speller v. Allen,

192 F. 2d 477; Daniels v. Allen, 192 F. 2d 763.

5 Cir. Bailey v. Stoutamire, 155 F. 2d 754; Frazier v. Ellis, 196 F. 2d

231.

7 Cir. Parker v. Carey, 135 F. 2d 205, 320 U. S. 755; Weber v. Ragen,

176 F. 2d 579, cert. den. 338 U. 8. 809; Holderfield v. Ragen, 170 F. 2d

189, cert. den. 336 U. S. 906.

8 Cir. Mart v. Lainson, 169 F. 2d 1016.

9 Cir. Bird v. Smith, 175 F. 2d 260; Moore v. Smith, 164 F. 2d 483.

11 See Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171,

173-174, 178; Frank v. Mangum, 237 U. S. 309, 329.

12Tn addition to ignoring the testimony of Respondent's trial counsel

(R. 182), as well as all of the reasons for a new trial, Nos. 10, 11 and 12

23

the trial court disregarded the evidence (R. 428) upon which

it was based because it was technically not a part of the

record (R. 428), (2) the issue presented to the District

Judge—suppression of material evidence—was not raised"

in the Pennsylvania Supreme Court (R. 417-418) and they

‘“‘were not certain whether the Court passed on the ques-

tion raised by the evidence relating to the .38 caliber bullet’*®

(R. 418), and (3) although ‘‘the issue of intentional sup-

pression of pertinent and vital evidence’’ and ‘‘fundamen-

tal fairness’’ were explicitly raised in the habeas corpus

proceeding in the Pennsylvania Supreme Court (R. 419),

the per curiam opinion of that Court’® was not an adjudi-

(App’x. 492-494), the Respondent’s Petition for Certiorari in this Court

(App’x. 675) and Petition for Rehearing (App’x. 1383) they drew an

exceedingly fine distinction between “failure to produce” and “sup-

pression.”

18 This ignores Commonwealth v. Daily (No. 2) 280 Pa. 59, 65-66, 124

Atl. 440. Moreover, it ignores the practice in Pennsylvania to raise all

matters on motion for a new trial which were formerly raised in coram

nobis (Commonwealth ex rel. v. Ashe, 28 Pa. ’. & C. Reps. 573, 575). The

issue raised by this evidence, if it had the -ffect under Pennsylvania Jaw

which the Court of Appeals has attached to it, might, after the expiration

of the term, have been raised in coram nobis (see Commonwealth v.

Harris, 351 Pa. 325, 327, 41 A. 2d 688) were it not for the fact that the

Act of April 22, 1903, P. L. 245, 19 Purdon’s Penna. Statutes Annotated

Section 861 has replaced it in first degree murder cases (Commonwealth Vv.

Harris, 351 Pa. 325, 342, 41 A. 2d 688, supra). There is no reason, there-

fore, technically or otherwise, why the “evidence” was not before the trial

court on motion for a new trial. It was, and, indeed, it was considered,

as clearly evidenced by the Court’s opinion (App’x. 434).

14This ignores Respondent’s Petition for Reargument (App’x. 643,

644), his Petition for Certiorari (App’x. 674-679) and his Petition for

Rehearing (App’x. 1383) in this Court.

15 This ignores both the matters pointed out in footnote 6, supra, and

the Respondent’s statements in his Petition for Certiorari in this Court

(App’x. 679), and misconsttues the scope of a Petition for a New Trial

under the Act of April 22, 1903, P. L. 245, 19 Purdon’s Penna. Statutes

Annotated (see footnote 13, supra).

16“We are of the opinion that the matters complained of by the Re-

lator [Respondent] do net warrant the granting of a Writ of Habeas

Corpus. Writ refused.” (App’x. 718).

24

cation on the merits,’ but merely an exercise of its discre-

tion not to assume original jurisdiction’’ and ‘‘a fortiori did

not involve adjudication on the merits by the Supreme

Court of the United States’’ (R. 434) and (4) since Re-

spondent had exhausted his remedies in the State Courts

(with which Petitioners agree) and ‘‘that there is an ab-

sence of available State corrective process, or that circum-

stances exist rendering such process ineffective to pro-

tect .... [Respondent’s] rights’’ (R. 436-437), the Dis-

trict Judge properly assumed jurisdiction under Section

2254 of the Revised Judicial Code, 28 U.S. C. Section 2254.

17 Curiously, in Kennedy v. Burke, 3 Cir., 173 F. 2d 544, an opinion

by Biggs, C. J., a similar order was regarded as an adjudication of the

merits of the matters alleged in the application. Likewise, Gordon v.

Scudder, 9 Cir., 163 F. 2d 518, cert. den. 332 U. S. 830 (a capital case) ;

Ex Parte Adamson, 9 Cir., 167 F. 2d 996,, cert. den. 334 U. S. 834 (a capital

ease; Gryger v. Burke, 334 U. S. 728.

18This ignores not only the Respondent’s Petition for Certiorari

(App’x. 734, 737-738), but also the action of the Pennsylvania Supreme

Court subsequent to its decision in Commonwealth ex rel. Paylor v.

Claudy, 366 Pa. 282, 77 A. 2d 350, assuming original jurisdiction in eapital

eases which had been affirmed by it (Commonwealth ex rel. Darcy v.

Claudy, 367 Pa. 130, 79 A. 585, cert. den. 342 U. S. 837; Commonwealth

ex rel. Daverse v. Hohn, Pa. . A. 2d , cert.

den. 342 U. 8. 812 (not reported), and Commonwealth ex rel. Thompson

v. Dye, Pa. ' A. 2d , cert. den. 342 U. S. 929

(not reported), (See also, Commonwealth ex rel. Sheeler v. Burke, 367

Pa, 152, 79 A. 2d 654), and the fact that the order did not contain, as

the order in Commonwealth ex rel. Paylor v. Claudy, 366 Pa. 282,

287, 77 A. 2d 350, did, where orginal jurisdiction was declined, “with-

out prejudice” and last, but not least, the substance of the order which

clearly indicates a determination on the merits. Moreover, a lower

court would not have the power to make a collateral inquiry into judg-

ment of the Pennsylvania Supreme Court (People ex rel. Stead, 1!

torney General v. Superior Ct. of Cook County et al., 234 Ill. 186, 84 N.E.

875; People ex rel. Kerner, Attorney General v. Circuit Ct. of Sangamon

County, et al., 354 Ill. 363, 188 N.E. 408; People ex rel. Kerner, Atcorney

General v. Circuit Ct. of Will County et al., 369 Ill. 438, 17 N.E. 2d 46;

State ex rel. Galbraith, Attorney General v. Superior Ct. of Pinal County

et al., 22 Ariz. 452, 197 Pae. 537; Skipper v. Schumacher, 118 Fla. 867,

160 So. 357; Collier et al., v. King, 118 Fla. 866, 160 So. 926; 25 Am.

Jur., Habeas Corpus, See. 110; 12 R.C.L., Habecs Corpus, See. 39; 39

C.J.S., Habeas Corpus, See. 56.

SUCRE EH AEE RRe RNIB NEL CD UL

AHI SAL ENROL NE ONE PRR al aaah }

|!

—

25

It is abundantly clear that the issue involved in this pro-

ceeding was presented to and adjudicated by the trial court ;

that it was presented to and adjudicated by the Pennsyl-

vania Supreme Court on the direct appeal;?® and that,

since the Act of April 22, 1903, P. L. 245, has replaced coram

nobis in first degree murder cases (Commonwealth v.

Harris, 351 Pa. 325, 342, 41 A. 2d 688, supra), it was

presented to and adjudicated by the Pennsylvania Supreme

Court on the application for a new trial under that Act.

Likewise, it is abundantly clear that the corrective processes

supplied by Pennsylvania were wholly adequate to protect

the Respondent’s rights. Therefore, if the District Judge

had followed the principles of Frank v. Mangum, 237

U. 8. 309, 329, he should have declined to entertain the ap-

plication regardless of the Respondent’s self-made ‘‘ur-

gency’’. Had there been any doubt in the mind of the Dis-

trict Judge to whom the application was made as to whether

the principles of Frank v. Mangum, 237 U. S. 309, 329,

supra, were applicable, he should, instead of accepting

the allegations of the Respondent, have determined for

himself whether or not the issue had been raised, whether

or not the corrective processes were adequate and whether

or not it had been disposed of in the direct and ancillary

appellate proceedings. If those matters were determined in

the affirmative, as they should have been, the application

should have been declined without the formality of a rule

to show cause, and more especially so wiere the petition

disclosed on its face that the entire matter had just been

reconsidered by the Pennsylvania Supreme Court. After

having issued the rule to show cause, and retaining juris-

194A contrary conclusion would require a complete disregard of the

Petition for Reargument (App’x. 643-656) and the order entered thereon

(App’x. 657), (the Court of Appeals, incidentally, although it was before

them, did not mention the Petition for Reargument) as well as the Peti-

tion for a New Trial (App’x. 658-661) and the order entered thereon

(App’x. 662).

BORE Pej LESLIE TLE ae aE EVAR PE RED MI S e net se TOS, wl

26

diction pending determination of the Petition for Certiorari

in this Court which, by necessity, conceded the adequacy of

the remedy, the denial thereof without comment, should

have convinced the District Judge, upon application by the

Petitioners, that the Rule to Show Cause should be dis-

charged.” Neither the ‘‘absence of available State cor-

rective processes’’ clause, nor ‘‘the existence of circum-

stances rendering such process ineffective to protect the

rights of the prisoner’’ clause of Section 2254 of the Re-

vised Judicial Code which are limitations and not, as the

Court of Appeals held, enlargements, upon the ‘‘exhaus-

tion of remedies”’ clause, authorize an avoidance of the rule

of restraint which was characterized in Frank v. Man-

gum, 207 U. S. 309, 329, supra, as ‘‘. . . a principle of

right and of law, and therefore of necessity.’’ To hold, as

the Court of Appeals held, would render completely nuga-

tory the purpose of the ‘‘exhaustion of remedies’’ clause

which, as evidenced by the last paragraph of Section 2254

of the Code, presupposes the existence of an adequate

method (Woolsey v. Best, 299 U. S. 1) by which ‘‘the

question presented’’ may be raised. In short, those two

clauses simply mean that a District Judge may, without

more, grant a writ where the issues could not have been

raised and it appears that the matter cannot presently be

raised or, if it can, that for some reason, relief cannot be

granted. Congress never intended that where, as here, State

corrective processes are adequate, and they have been ex-

hausted, a District Judge should, as the Court of Appeals

held, in the absence of an expression from this Court,”! avoid

20 See Darr v. Burford, 339 U. S. 200, 215, and eases cited in footnote 10,

supra. It should also be observed that the decision of the seven Judge

Court in United States ex rel. Smith v. Baldi, 87 F. Supp. 338, now pend-

ing before this Court, had been filed when the motion to discharge the rule

was disallowed.

21 Darr v. Burford, 339 U. S. 200, 215; Cf., Ex Parte Royall, 117 U. S$.

241, 254.

Re EEL SEL ELLIOT L I ETT ARE RE ME PINE IN LOR

erat SR ree

_ ——<—§<

27

the rule of restraint—the undoubted purpose of the ‘‘ex-

haustion’’ clause—by the simple expeditent of holding that

they were ineffective simply because his concept of ‘‘funda-

mental fairness’’ differs from that of the State tribunals

which this Court has declined to disturb.??

2. The Court of Appeals avoided the Rules of Decision

Act which would have required them to apply the law of the

case as established by the prior litigation in the State

Courts by holding that the issue was not decided in that

litigation. The Petitioners have demonstrated graphically,

it is felt, that the basic issue—relevancy (this was not open

to inquiry on habeas corpus (Cf., Collins v. Johnston, 237

U.S. 502 )) of the evidence alleged to have been suppressed

—was, by necessity, adjudicated by the Pennsylvania

Courts and adversely to the Respendent.** That became

the law of the case and it was the duty of the District Judge

and the Court of Appeals to apply it.** The Court of Ap-

peals, however, ignored the decision in the Hough case and

the Williams case (see footnote 23), which, apart from the

law of the case, they were also required to follow, under the

Rules of Decision Act, and rested their conclusion with

respect to materiality upon a decision of the Pennsylvania

22 Bailey v. Stoutamire, 5 Cir., 155 F. 2d 754 (a2 eapital case).

23 The decision was consistent with the decision of the trial court in the

companion case of Commonwealth v. Hough (App’x. 872, 877), affirmed by

the Pennsylvania Supreme Court (App’x. 882-889), opinion reported at

358 Pa. 247, 56 A. 2d 84. Although not cited, the decision followed the

rule established two decades ago in Commonwealth v. Williams, 307 Pa.

334, 160 Atl. 602 (a capital case) where it was held that evidence which

was not a defense was not admissible in mitigation. A fortiori, since the

Court had held on direct appeal (App’x. 575-642) that the identity of

the person who fired the fatal shot was immaterial as to guilt, the evidence

alleged to have been suppressed was not relevant to the issue of penalty.

Moreover, the decision could have rested on the contention made by the

Prosecuting Attorney on the direct appeal (App’x. 564), viz., there was

nothing to show its relationship to the proceeding.

*4 Rules of Decision Act, Act of June 25, 1948, e. 646, 62 Stat. 944, 28

U.S.C.A. Section 1652; West v. American Telephone and Telegraph Co.,

311 U. S. 223, 238; Walsh v. White, 338 U. S. 804, reversing 174 F. 2d 49.

ee TRS NEE RRR Henna etl ER AFORE A ae ssi OE ¥

28

Supreme Court in the case of Commonwealth v. Chambers,

367 Pa. 159, 79 A. 2d 201, rendered some seventeen months

after its decision in Commonwealth v. Almeida, 362 Pa. 596,

68 A. 2d 595, and nearly a year after its refusal of a writ of

habeas corpus. That decision, however, is not factually

apposite. There, the Commonwealth had introduced a con-

fession in which it appeared that Chambers (defendant)

had not participated in the actual infliction of the injuries

which caused the death of the victim. The Trial Judge,

however, charged the jury in such a manner that this evi-

dence was virtually withdrawn from the jury’s considera-

tion. The Pennsylvania Supreme Court reversed. Obvi-

ously, that is different from the proposition for which it

was cited and relied upon by the Court of Appeals. In the

event, however, of any conflict, it was the duty of the Dis-

trict Court and the Court of Appeals, under the law, to take

the law of the case as established by the prior litigation.

3. The ultimate finding®® upon which the District Judge

based the conclusion that the Respondent had been denied

due process was clearly erroneous. The Court of Appeals

seems to have erroneously” applied the ‘‘substantial evi-

dence’’ test?” but, even under that test, in view of the ex-

treme weakness of the Respondent’s evidence as opposed

by the clear, positive, uncontroverted, credible and convinc-

ing evidence of the Petitioners, the finding should have been

reversed.2?> Fortunately, however, this Court has the power

%Ҥ The Assistant District Attorney deliberately and wilfully sup-

pressed at Relator’s [Respondent’s] trial material evidence which would

have warranted the inference that a uniformed police officer fired the shot

which killed Ingling” (R. 407). This was characterized by the Court of

Appeals (F.N. 17, R. 423) as a finding of fact.

26 Rule 52 (a), Federal Rules of Civil Procedure, 28 U.S.C.A. 52 (a);

United States v. United States Gypsum Co., et al., 333 U. S. 364, 394-395.

27 This was a departure from the rule announced by the same court and

the same opinion writer in Johnson v. Dye, 3 Cir., 175 F. 2d 250, 255,

reversed on other grounds, 338 U. S. 864.

28 Cf., Gelb et al. v. Federal Trade Commission, 2 Cir., 144 F. 2d 580.

-k

=

29

to correct an erroneous finding where an obvious mistake

has been made.*® Such a mistake was here made.

The burden rested upon the Respondent to prove the alle-

gations upon which his claim rested by a preponderance of

the evidence.* The District Judge, however, appeared to

feel that the burden was upon the Petitioners to disprove

Respondent’s allegations. This is, to some degree, reflected

by the commenis of the District Judge*! (R. 149), as well

as the ultimate finding (see footnote 25, supra) which not

only totally ignores (1) positive, credible and uncontroverted

evidence that the controversial bullet, which is the very

warp and woof of the Respondent’s case, was not the bullet

which killed Ingling (see footnote 3, supra), (2) the critical

and material variance in the location of the bullet between

Respondent’s proceedings in the State Courts and this

Court and in the District Court (see footnote 4, supra),

(3) documentary evidence (App’x. 562-564, 1239, 1302) indi-

cating more convincingly than the spoken word possibly

could the Prosecuting Attorney’s theory of the case which

is completely incompatible with deliberate supression, but

also rests upon vital subsidiary findings based upon infer-

ences unwarranted by the evidence. To illustrate, Finding

No. 25 places an unwarranted interpretation on Del Torre’s

use of the word ‘‘mushrooming”’ (R. 150-151) and totally ig-

nores Dr. Wadsworth’s testimony (R. 326) that the contro-

versial bullet was not ‘‘mushroomed’’, as well as Spangler’s

report (R. 83-84) introduced by the Respondent which sig-

nificantly contained no mention of ‘‘mushrooming.’’ Find-

ing No. 26 is predicated on a statement made by Del Torre

*° United States v. United States Gupsum Co. et al., 333 U. S. 364, 395.

8° Johnson Vv. Zerbst, 304 U. S. 458, 468-469; Hawk v. Olson, 326 U. S.

271, 279.

31 “The Government is on trial, not Almeida.”

*2 Tt is obvious that the theories are incompatible. If one is right, the

other is wrong. The District Judge, in effect, found that the former

theory was wrong.

30

(R. 134) in response to a question by the District Judge, but

it completely ignores the testimony immediately following

(R. 135-136) also in response to questions by the District

Judge, and by counsel for Petitioners (R. 158) that he (Del

Torre) had first come in contact with the bullet in August

1950, two and one-half years after Respondent’s trial, and

after the proceeding had been instituted in the District

Court. Of course, anyone, then, would realize that it was

vital for the purpose of refusing the claim upon which the

application to the District Court rested. Finding No. 28 im-

putes a sinister purpose to the Prosecuting Attorney’s in- _

struction to Spangler prior to his testimony in the trial of

Smith, but totally ignores Spangler’s testimony (R. 95, 96.

App’x. 1265) that he was not competent to testify with re-

spect to that matter. It is evident that the Prosecuting At-

torney’s desire to eliminate that possibiliy of trial error

motivated his observation to Spangler.

It is clear that a mistake was made in the controlling ulti-

mate finding (see footnote 25, supra) which should, in the

interest of justice, be corrected.

Conclusion

For the reasons stated, the Petition for a Writ of Cer-

tiorari should be granted.

Respectfully submitted,

Rosert E. Woopsipe,

Attorney General of Pennsylvania.

By Ranvotex C. Ryver,

Deputy Attorney General of Pennsylvania.

Aveust 8, 1952.

33 It must be borne in mind that Spangler was testifying in behalf of .

the Respondent in the District Court.

(3315)

one viii w DOP Nee NG ee eT RPS an

eS

Page

Counter-STaTEMENT OF QuEsTIONS PRESENTED ....... 1

Counter-STaATEMENT OF THE Facts ................

Reasons ror Nor Grantinc THE WRIT .............. g

TABLE OF CASES CITED.

Page

Agoston v. Pennsylvania, 340 U. S. 844 ............ 12

ARS CV. TRG, Bre Os WE bi wks chs ewes cde N es 10

Commonwealth v. Chambers, 367 Pa. 159 ........... 15

Commonwealth v. Simmons, 361 Pa. 391 ........... 15

Commonwealth v. Stabinsky, 313 Pa. 231 ............ 15

Commonwealth v. Wooding, 355 Pa. 555 ........... 15

DIGET-¥. DORTONG,; BHO Ul. Gy OO oa wae cs cckscuenes 12, 13, 14

Dowd v. United States, 327 U. S. 808, 90 L. ed. 1032;

Soe UW OR, WE Ba OR Re 65 ev vtnecsvenasas 14

Frank v. Mangum, 237 U.S. 309 ..............046. 9,10, 11

Reoune ¥. Maye, Be GW. Be sic civic ccc evsecs 9, 11, 12

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U. S. 387, 43 S. Ct. 422, 67 L. Ed. 712 ...... 12

Maryland v. Baltimore Radio Show, 338 U.S.912.... 12

Moore v. Dempsey, 261 U.S. 86 .............. 9, 10, 12, 14

Salinger v. Loisel, 265 U. S. 224 ...............0.. 10

Bunel ¥. Large, GEE VU. H. TIE oi ccc ce scsccccetens 12

United States v. Carver, 260 U. S. 482 ........... 12

United States ex rel. Smith v. Baldi, reargument

ee eee Terr er 15, 16

Weber v. Ragen, 176 F. 2d 579 (7 Cir.) cert. den. 338

Ws i ME nn be Rec des aE RAK bin kbeaeesehuneseen 13

White v. Ragen, 324 U. S. 760 ............. cee eee 9, 16

Williams v. Kaiser, 323 U. S. 471 ..............005. 16

Wong Doo v. United States, 265 U. S. 239 .......... 10

MISCELLANEOUS.

Page

i, BR i I ec Be a es 8 65s ee Sehitekecen 12

Act of 1939, June 24, P. L. 953, §701,18P.8.4701... 7

Revised Judicial Code:

Section 2241 (28 U.S. C., Sec. 2241) .......... 2

Section 2254 (28 U.S. C., Sec. 2254) ............ 2, 12

SPELL LA LVL TI I SP EIR OT POI EES SII OTE EO IE I ey aeORAR _—

IN THE

Supreme Court of the United States.

Ocroser Term, 1952.

No. 264.

DR. FREDERICK S. BALDI, Suprrmntenvent, Puma-

DELPHIA County Prison

AND

J. W. CLAUDY, Successor ro STANLEY P. ASHE,

Wappen, WEsTERN StaTE PENITENTIARY,

Petitioners,

v.

UNITED STATES OF AMERICA, ex ret.

DAVID ALMEIDA.

ANSWER TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD

CIRCUIT.

COUNTER-STATEMENT OF QUESTIONS

PRESENTED.

1. Whether willful suppression of material evidence by

the prosecuting attorney in a capital trial in a State court

is a violation of the due process clause of the Fourteenth

Amendment?

2. Whether there is substantial evidence in this record

to sustain the findings of the Federal District Court affirmed

by the Court of Appeals that the State prosecuting attor-

ney willfully suppressed material evidence at Respondent’s

trial for his life?

ee ~" —

Ae RAE TSE Mee Me CK ee ah

2 Counter-Statement of the Facts

3. Whether previous denial of certiorari by this Court

to review a State court decision precludes a Federal District

Court from later entertaining an application for habeas

corpus involving same questions where the decision of the

State court did not pass upon the merits of the Federal con-

stitutional issue presented to it?

COUNTER-STATEMENT OF THE FACTS.

The rather considerable liberties which the Petition

takes in its tendentious review of the evidence in this case

requires Respondent to set forth in some detail an accurate

vesume.

This case presents, not an extraordinary procedural

situation, as the Petition of the Commonwealth suggests,

but the one contemplated by Sections 2241 and 2254 of the

Judicial Code (28 U.S. C., sec. 2241, 2254) wherein a de-

fendant, improperly sentenced to death in a State court,

completely exhausted the available State corrective proc-

esses including petition for certiorari and then applied

to the United States District Court for habeas corpus. The

writ was granted because the District Court found, on ample

evidence, that during the trial the prosecuting attorney had

willfully suppressed material evidence helpful to the de-

fendant on a crucial issue; that such suppression constituted

denial of the fundamental right to a fair trial guaronteed

by the due process clause of the Fourteenth Amendment

thereby ousting the jurisdiction of the State court to im-

pose sentence of death. The Court of Appeals affirmed.

On January 30, 1947, Respondent (Almeida), together

with Edward Hough and James Smith, committed an armed

robbery in a grocery store at 1924 Fairmount Avenue in

the City of Philadelphia.

The evidence shows that Almeida was armed with a .45

calibre revolver (Appx. 68, 164, 991), Hough carried a .45

automatic (Appx. 67, 217), and Smith a .22 calibre revolver

}

Sa econ — |

Counter-Statement of the Facts 3

(Appx. 1011), and that neither Hough’s nor Smith’s gun

was fired at the scene of the crime (Appx. 1270, et seq.).

Police arrived while the robbery was still in progress.

Almeida, followed by Hough, fled from the store to join

Smith, who had been waiting in the car outside. As Hough

ran toward the car, Cecil Ingling, an off-duty policeman in

civilian clothes, attempted to stop him. At that moment

Ingling was shot through the head. He died soon after-

wards.

The bandits escaped from the scene but a few blocks

away Hough fell out of the car and was captured by pur-

suing police. Several months later, Almeida and Smith

were captured in New Orleans and returned to Philadelphia

for trial.

Hough, Almeida and Smith were all indicted for the

murder of Cecil Ingling. Hough entered a general plea of

guilty to murder, was found guilty of murder in the first

degree by a three judge Court and was sentenced to death.

This sentence has not been executed. He has testified

against both his accomplices as a witness for the prosecu-

tion.

Almeida pleaded Not Guilty. At his trial Mrs. Ingling

(Appx. 293, 1150) and her two children, Leon (Appx. 302,

1161) and Jean (Appx. 300, 1157) testified that it was Smith

who shot Ingling. Hough, on the other hand, testified that

Almeida shot Ingling (Appx. 79, 1001).

In short, at Almeida’s trial it was intentionally made

to appear by the prosecutor that Almeida (according to

Hough’s testimony) or one of his accomplices (Smith, ac-

cording to the Inglings) had shot Ingling. The jury found

Almeida guilty of murder in the first degree and fixed the

penalty at death rather than life imprisonment. 18 P. S.

4701 (R. 414 N. 2).

Ten days later, Smith, the third member of the bandit

trio, was put on trial. At the trial of Smith the following

significant evidence was uncovered for the first time.

4 Counter-Statement of the Facts

1. Edward H. Ahrndt, a city detective, arrived at the

scene of the crime five minutes after it occurred and found

a spent bullet on the sidewalk just outside the door of the

market. He turned this bullet over to Lt. George R. Spang-

ler, the city ballistic expert (Appx. 1300).

2. Lt. Spangler identified that bullet as a .38 calibre

S. & W. special, the type used by the police (Appx. 1283).

He also testified that the diameter of a .38 calibre bullet is

slightly more than nine millimeters; of a .22 calibre bullet,

5.6 millimeters; and of a .45 calibre bullet, 11.4 millimeters

(Appx. 1290-2). He testified that he turned that .38 calibre

bullet over to the police chemist, Dr. Lampert (Appx. 1293).

3. Dr. Lampert testified (Appx. 1311) that he found

blood on that bullet.

4. Dr. William S. Wadsworth, Coroner’s Physician, tes-

tified that the bullet which killed Officer Ingling passed

through his head and that the wound of entrance in the

bony structure of the head was 10 millimeters, measured by

a cone graduate, (900 (3)-900 (4)) and that there were no

powder marks around it (900 (5)).

5. Officer Mark McGinley testified that he arrived at

the scene while the bandits were still there, that he fired

several times in the direction of their car and saw someone

fall to the ground (Appx. 1244, 1245) and that he did not

know whether he hit or killed anyone or not (Appx. 1210,

1211). The only man who fell was Ingling.

6. Lieutenant Spangler testified that he received for

examination the .22 calibre revolver of Smith and the .45

calibre automatic carried by Hough and that neither of

them had been fired at the scene of the crime (Appx. 1270,

et seq.). He also testified that he received from Detective

McGurk two .45 calibre bullets recovered from the ceiling

inside the supermarket (Appx. 1279). (Almeida was the

only one who fired a gun inside the market (Appx. 1015)).

Counter-Statement of the Facts 5

This evidence therefore demonstrated (1) that Ingling

could not have been killed by any of the guns carried by

the robbers because a .45 calibre bullet (being 45/100 of an

inch or 11.4 millimeters in diameter) could not enter bony

structure and leave a 10 millimeter hole and neither of the

other guns had been fired; (2) that he could have been and

very likely was killed by a police bullet and (3) that this

information (in report form) was in the possession of the

police and the District Attorney for months prior to Re-

spondent’s trial. Smith was found guilty of first degree

murder but was given a life sentence by the Jury.

The Commonwealth’s Petition suggests contrary pos-

sible conclusions from this evidence. Even if there are,

that is not material in a suppression case and even so, the

suggestions of the petition are contradicted by the Record.

The petition suggests that the police did not arrive at the

scene until after Ingling had been shot. To the contrary,

Hough testified at Almeida’s trial (78/9) that Smith had

been shot. by the police before Ingling was shot. Alfred J.

McClernan, an employee of the Supermarket, testified (187-

191) that the police had arrived on the scene and several

shots had been fired before he saw Ingling fall. Officer

McGinley testified (207, et seq.) that he drove his car up

beside the bandits’ car in an attempt to block their escape,

and fired at a man getting into the car. Frank Treadway,

a customer in the store, testified that the police arrived

while Almeida and Hough were still in the store (Appx.

789, 1304). Treadway was not called to testify at Almeida’s

trial.

The Commonwealth’s petition suggests (p. 13) that the

testimony of Dr. Wadsworth, Coroner’s Physician, that the

fatal shot was fired a minimum distance of three feet, ‘‘cor-

roborates’’ the testimony of Jean Ingling that she saw the

man shoot her father from a distance of four feet. It is

to be noted that this testimony is equally consistent with

the hypothesis that the shot was fired from ten feet away

or more (Dr. Wadsworth’s testimony, Appx. 20-22). And

6 Counter-Statement of the Facts

it is alsv to be noted (1) that Jean Ingling first identified

Hough as her father’s killer (1306), and later positively

identified Smith as her father’s killer (157), and (2) that

her version of how her father was killed completely con-

tradicts that of Hough, who testified (79/80) that it was

Almeida who shot Ingling and that he did it by leaning over

Hough’s shoulder so that his pistol must have been within

a foot or less of Ingling’s head.

The Commonwealth’s petition suggests that the testi-

mony in the District Court of Lt. Del Torre and Dr. Wads-

worth, to the effect that the markings on the crucial bullet

are such that it could not have been the one which killed

Ingling, is significant (p. 9, N. 3). It is to be noted that

this testimony (R. 129-132 and 313, 314) was based on an

examination of the bullet made November 21, 1950, nearly

three years after the occurrence in question, and that the

foundation of their conclusion is so meager as to make the

conclusion itself sheer conjecture (R. 126-130, R. 314-318).

The Commonwealth’s Petition (p. 10, N. 4) suggests

that an apparent variance in Respondent’s position as to

the location of the .38 calibre bullet found by Detective

Ahrndt ‘‘completely shatters’’ the theory that Officer Mc-

Ginley fired the fatal shot. Whether in fact he found the

bullet directly in front of the American Store door, or ten

feet to the East, Detective Ahrndt described the location

even more significantly in these terms: ‘‘directly on a line

where the body was laying’’ (R. 56). Tha: fact is clear.

It is also clear, that the bullet was a .38 calibre police bullet;

it is clear that of all the types of guns and bullets involved

in this affair, this was the only one of the size of the wound

of entrance in the bone of Ingling’s head (R. 310); it is

clear that of all the bullets in evidence, this one alone had

blood on it (R. 108); it is clear that Officer McGinley ad-

mitted in his police report (R. 374) that he fired in the

direction indicated and then saw someone fall (R. 374) and

finally it is clear that whoever killed Ingling, it could not

possibly have been Almeida.

or ? - Spa a ey ar

— ————

Counter-Statemeni of the Facts 7

All of the foregoing evidence was in the possession of

the District Attorney for months prior to the trial of Re-

spondent. Detective McGurk filed a report on the finding

of the .45 calibre bullets fired by Almeida in the ceiling of

the supermarket. Detective Ahrndt filed a report on the

discovery of the bloody .38 calibre bullet (R. 65). Lieu-

tenant Spangler filed a report on his examination of the

bullet found by Ahrndt showing it was a .38 calibre Smith &

Wesson special, and that Dr. Lampert had found blood on

it (R. 83, 108). Officer McGinley made a report relating

that he fired at the bandits’ car and saw someone fall (R.

373, et seq.). Captain Kelly informed the Assistant Dis-

trict Attorney who prosecuted all three cases about these

findings prior to the trials (R. 333). When Lt. Spangler

was later subpoenaed by the defense in the trial of Smith,

the Assistant District Attorney instructed him not to men-

tion the blood on the bullet (R. 89, 90). Counsel for Re-

spondent asked the Assistant District Attorney about the

existence of such bullets and received no information (R.

176). This evidence was never yielded willingly by the

prosecutor but was uncovered by counsel for Smith at the

later trial.

Under the law of Pennsylvania it is the duty of the trial

jury to fix not only the degree of murder, but also the

penalty. Act of 1939, June 24, P. L. 953, § 701, 18 P. S.

4701. The latter function is no less to be performed on

the basis of trial evidence than the former and, therefore,

not only evidence relevant to guilt but also that which is

relevant only to the penalty—the character of the offender,

the atrocity of the crime, whether he was a direct or only

an indirect cause of the death—is material in such a trial.

Therefore, the Court below has properly found that

the District Attorney deliberately concealed material evi-

dence at Respondent’s trial; that he asked the jury to sen-

tence Respondent to death on untruthful testimony while he

possessed the undisclosed true evidence which later per-

suaded the Smith jury to fix a life sentence.

8 Reasons for Not Granting the Writ

REASONS FOR NOT GRANTING THE WRIT.

The Petition of the Commonwealth suggests that the

writ ought to be granted because the court below erred in

eight specified instances. In answer, Respondent respect-

fully submits (1) that none of the allegations of error is

correct and (2) that none of the questions presented war-

rants consideration by this Court on certiorari.

The first error alleged is in affirming the judgment of

the District Court. This is alleged to follow from the

others and will therefore be considered last.

Specifications Nos. 2 through 5 allege error in holding

that the Pennsylvania Courts here involved did not con-

sider or decide Respondent’s federal questions in various

proceedings. By way of reply, Respondent can only in-

vite this Court to examine the records of the proceed-

ings referred to which are appended. Such examination

reveals clearly, contrary to Specification No. 2, that the

issue of suppression was not raised in the motion for new

trial. Only matters of Pennsylvania law are alleged (Appx.

1320, et seq.). Examination of the opinion of the trial

Court of Oyer and Terminer on that motion reveals that no

federal issue was considered, contrary to Specification No. 3.

Contrary to Specification No. 4, the opinion of the Supreme

Court of Pennsylvania (Appx. 575, et seq.) reveals that no

federal issue was considered. Since it was not a matter of

record it could not have been. Likewise in the petition for

new trial in the Supreme Court of Pennsylvania sucn con-

tentions could not be considered because they did not relate,

as required by the Act of 1903 (cf. petition p. 6), to the

guilt of the defendant but rather to the penalty. Finally,

and contrary to Specification No. 5, this issue was not de-

cided by the Pennsylvania Supreme Court on Respondent’s

petition for habeas corpus in that Court. That petition was

summarily denied, without hearing and without opinion.

The Supreme Court of Pennsylvania has and frequently

exercised the power to refuse, as a matter of discretion,

AOR SCNT NIT roms peemeRORK HER —

—_—_—_—"

Reasons for Not Granting the Writ 9

original jurisdiction in habeas corpus. Such, as pointed out

by the court below, was the case here (Appx. 430, et seq.).

As to Specification No. 6:

The Commonwealth does not contend that the District

Court had no jurisdiction to entertain Relator’s Petition

for Habeas Corpus, but that it is a matter of discretion for

the District Court and that under the circumstances of this

ease that Court’s action in entertaining the petition and

entering into a hearing of the case was an abuse of discre-

tion. This conclusion is predicated upon the assumptions

(1) that the issue presented to the District Court on Habeas

Corpus had already been adjudicated adversely to peti- .

tioner by the State courts, and (2) that this Court’s subse-

quent denials of certiorari to the State decisions expressed

the opinion of this Court that there was no merit in peti-

tioner’s contentions and thereby precluded reexamination

of the issues by any lower Federal Court under the ‘‘rule

of restraint’’ stated in Frank v. Mangum, 237 U. S. 309.

Respondent denies both of these assumptions, and further

submits that even if they were both true the result should

nevertheless be the same under the rule of Moore v. Demp-

sey, 261 U.S. 86.

The Court of Appeals held that the Pennsylvania Su-

preme Court did not pass on the merits of the petitioner’s

contentions; rather that the denial of his petition for habeas

corpus in that court was a discretionary refusal to consider

the case on the merits (Appx. 470, et seq.). This being the

ease, the Pennsylvania decision rested on an adequate non-

federal ground, hence this Court had no jurisdiction to re-

view it on certiorari, therefore the denial of certiorari could

have no relation to the merits of the case. Therefore under

the rule stated in House v. Mayo, 324 U. S. 42, and White v.

Ragen, 324 U. S. 760, the denial of certiorari could have no

effect on Respondent’s subsequent petition for habeas

corpus in the District Court.

But even assuming the Supreme Court of Pennsyl-

vania passed on the merits of the federal question presented

10 Reasons for Not Granting the Writ

in paragraphs 29 and 31 of the petition for habeas corpus,

this Court’s denial of certiorari to that decision is not a

bar to a subsequent application for habeas corpus in the

District Court.

Petitioner, in support of its contention to the contrary,

relies on six decisions of this Court, none of which support

his position. The holding of Frank v. Mangum, 237 U. S.

309, is that while the decision of a state court is not res

judicata, it may be taken as true until the petitioner does

more than merely allege that his trial was vitiated by cir-

cumstances dehors the record. Unless this decision is to

be considered inconsistent with the later ruling in Moore v.

Dempsey, 261 U. S. 86, it must be confined to the facts

as stated. In Moore v. Dempsey, supra, this Court de-

clined to review by certiorari a decision of the Supreme

Court of Arkansas which had passed on the merits of the

petitioner’s federal claim. Thereafter this Court reversed

the District Court’s refusal to grant habeas corpus on a pe-

tition alleging facts to show that the trial court had vio-

lated his constitutional rights, saying (p. 92):

‘‘We shall not say more concerning the corrective

process afforded to the petitioners than that it does not

seem to us sufficient to allow a judge of the United

States to escape the duty of examining the facts for

himself when if true as alleged, they made the trial

absolutely void.’’

Salinger v. Loisel, 265 U. S. 224, and Wong Doo v.

United States, 265 U. S. 239, hold only that the district court

may dismiss without hearing a petition which obviously

amounts to an abuse of the Writ, i.e., where a prior peti-

tion for habeas corpus (not for certiorari) containing the

same allegations has already been denied in the federal

courts.

Ashe v. Valotta, 270 U. S. 424, allows dismissal of a

petition which alleged no violation of federal constitutional

rights but merely a violation of state law.

Reasons for Not Granting the Writ 11

In House v. Mayo, 324 U. S. 42, this Court reversed

the District Court’s refusal to grant habeas corpus after a

denial of certiorari, saying:

‘“‘The District Court also referred to a denial by

this court of a petition for certiorari, filed here after

the denial by the Florida Supreme Court of one of the

applications for habeas corpus. See House v. Mayo,

322 U. S. 710. The District Court thought tiiat this

was an expression ‘of the opinion that no meritorious

question is presented by the matters of which the peti-

tion here complains’. But as we have often said, a denial

of certiorari by this court imports no expression of

opinion upon the merits of a case.”’

In that case the Florida Court held that no remedy was

available to petitioner in the state courts. The Supreme

Court of Pennsylvania has, in effect, held the same in this

case.

The Commonwealth suggests that the courts below mis-

interpreted the ‘‘exhaustion of remedies’’ clause of Section

2254 of the Judicial Code in holding that ‘‘the absence of

corrective process’’ clause and the ‘‘circumstances render-

in,, process ineffective’’ clause were enlargements on the

“‘exhaustion’’ clause and not limitations. The grammar of

the Act and its obvious purpose make this contention frivo-

lous. It provides that no writ shall be granted unless (1)

State remedies have been exhausted or (2) there is an ab-

sence of such remedies or (3) circumstances exist making

such remedies ineffective. The very disjunctive construc-

tion of the sentence indicates clearly that if any one of the

three conditions is met the District Court may entertain an

application for the writ. Nor is this interpretation incon-

sistent with the holding of this Court in Frank v. Mangum,

supra. The Petitioner, however, has attempted to magnify

the rule of that case far beyond anything indicated in the

Court’s opinion, so that it becomes a complete bar to fed-

eral habeas corpus for state prisoners. If this strained

12 Reasons for Not Granting the Writ

construction of that decision be accepted then the only con-

clusion which rightly follows is that the case was implicitly

overruled by Moore v. Dempsey, supra, and completely

superseded by Section 2254 of the Revised Judicial Code

of 1948.

It is the settled law of this Court that a denial of cer-

tiorari imports no expression of opinion upon the merits of

the decision sought to be reviewed. United States v. Car-

ver, 260 U. S. 482; House v. Mayo, 324 U. S. 42; Sunal v.

Large, 332 U. S. 174; Maryland v. Baltimore Radio Show,

338 U.S. 912; Agoston v. Pennsylvania, 340 U.S. 844; Darr

v. Burford, 339 U. S. 200.

Chief Justice Taft spoke authoritatively for this Court

in Layne & Bowler Corp. v. Western Well Works, Inc., 261

U. S. 387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712:

“‘Tf it be suggested that as much effort and time

as we have given to the consideration of the alleged

conflict would have enabled us to dispose of the case

before us on the merits, the answer is that it is very

important that we be consistent in not granting the

writ of certiorari except in cases involving principles

the settlement of which is of importance to the public,

as distinguished from that of the parties, and in cases

where there is a real and embarrassing conflict of

opinion and authority between the Circuit Courts of

Appeals. The present case certainly comes under nei-

ther head.’’

And by Mr. Chief Justice Vinson, addressing the American

Bar Association Assembly (A. B. A. Rept. Vol. 74, p. 88):

‘*All other cases come within the court’s discre-

tionary jurisdiction, and, as has been the custom for

some years past, the court takes such cases only when

at least four justices feel that public importance of the

question presented requires its consideration by the

Supreme Court.’’

ORY ERGO FOOL NAN EL OER ENS —

Reasons for Not Granting the Writ 13

It is also the settled law of this Court that before

habeas corpus may be applied for in the district courts the

petitioner must first have exhausted his state remedies

which include a petition for certiorari in this Court. Darr

v. Burford, 339 U. S. 200.

The Commonwealth now suggests that where a State

court has decided the case on its merits and thereafter this

Court denies certiorari, a Federal District Court may not

reexamine the same contentions on habeas corpus.

If the proposition contended for is the law, it follows

that no Federal District Court may ever issue a writ of

habeas corpus to review the legality of a State confine-

ment. That is: (1) If the Federal question is not raised

or attempted to be raised in the State court, the Federal

Court has no jurisdiction. (2) If the Federal question is

raised in the State court then the doctrine of exhaustion

requires a petition for certiorari. If certiorari is granted

there will be a decision on the merits and hence no need

for habeas corpus; if it is denied even for the reason that

there is no conflict in the circuits or the question lacks suffi-

cient public importance, still this constitutes a decision on

the merits anyway. If this be the law, the habeas corpus

act is meaningless. Besides, there are many other consid-

erations which govern the decision on granting certiorari,

such as ripeness of the question, improper or insufficient

raising of question, ete. Also any new rule as to the effect

of refusal of certiorari could hardly be restricted to habeas

corpus cases but would apply to all other applications. The

effect upon the discretionary jurisdiction of this Court

would be easily foreseeable.

If a denial of certiorari is to be given the effect de-

manded by the Commonwealth’s petition, then, in justice,

this Court must undertake the task of examining the merits

of each such petition. Only then might a denial of cer-

tiorari rightly be said, as it was in Weber v. Ragen, 176

F. 2d 579 (7 Cir.) cert. den. 338 U. S. 809, to be an ex-

pression of this Court’s opinion that the constitutional ques-

SARC ES TERATTRIEIN > os REET SEMPRE ete eA RN

ASSN IEE EIN ELSE SLED N EME PELEGL DIESEL LE IRGE DE LEI SMEGEI VES AAPA HR PUTRI =

14 Reasons for Not Granting the Writ

tion raised is without merit. In that case Mr. Justice Min-

ton (then Judge of the Court of Appeals for the Seventh

Circuit) observed (176 F. 2d at p. 582):

‘*We have been cited no case where the Supreme

Court has denied certiorari and later decided that the

United States District Court should take jurisdiction

in a collateral proceeding in habeas corpus to consider

the identical questions which had been presented in the

direct proceeding where certiorari was denied.’’

It is a shame that the case of Moore v. Dempsey, 261

U. S. 86, was not cited to the Court. It is just such a case,

In Dowd v. United States, this Court twice denied petitions

for certiorari to review the action of the Supreme Court of

Indiana, the first of which was by habeas corpus going to

the validity of a conviction (327 U. S. 808, 90 L. ed. 1032)

and the second of which complained of the action of the

court in refusing a delayed appeal (330 U. S. 841, 91 L. ed.

1287). Thereafter petitioner brought a habeas corpus pro-

ceeding in the United States District Court, which, despite

the previous actions of this Court, entertained the petition

and ordered discharge. The Court of Appeals for the

Seventh Circuit affirmed (180 F. 2d 212). Warden Dowd

sought and was granted certiorari by this Court to review

the action of the federal courts below. This Court spe-

cifically held that the District Court had jurisdiction (340

U. S. 206, 95 L. ed. 215).

The ruling sought by petitioner would either destroy

the discretionary function of certiorari, or, as the Common-

wealth would prefer, leave the states to be the ultimate

judges of the federal constitutional propriety of their own

actions. Cf. Frankfurter, J., in Darr v. Burford, 359 U.S.

200. The Commonwealth’s contention must be rejected. The

civilizing influence of occasional review by this Court of

important questions involving state administration of crimi-

nal justice has been obvious to all. Every state should be

compelled to play fair. It is not good enough to punish

criminals by underworld methods.

eee

Reasons for Not Granting the Writ 15

The law as previously declared by this Court, and as

here set forth, denying adjudicative effect to the denial of

a petition for certiorari, leaves this Court free as it must

be, even if only on the basis of time and endurance, to

decide only those cases which it deems to be of great public

importance; and leaves the district courts free, as the jus-

tice of individual litigation demands they should be, to de-

termine substantial claims of violation of federal rights in

state prosecutions, notwithstanding a prior denial of cer-

torari.

Re: Specification No. 7.

The Commonwealth contends that the state courts in

the instant case held the evidence alleged to have been sup-

pressed irrelevant to the issues involved, and that the Court

of Appeals, contrary to the law of the case and the prior

Pennsylvania Law, held it was relevant.

The only proceeding in which this issue was or could

have been raised was Respondent’s petition for habeas cor-

pus in the Supreme Court of Pennsylvania. In that pro-

ceeding (cf. pp. 29 and 31, Appx. pp. 706-7) Respondent

specifically alleged violation of due process by willful sup-

pression of evidence relevant to the penalty. That peti-

tion, however, was denied without hearing by the Supreme

Court of Pennsylvania.

No Pennsylvania court in this case has held either that

that evidence was not relevant or that it was not suppressed.

The same evidence was admitted in the same court just ten

days later in the companion case of Commonwealth v.

Smith* (cf. Charge of the Court, Appx. 1426). It is well

established as the law of Pennsylvania that all circum-

stances bearing on the penalty are admissible to aid the

jury in its function of deciding the sentence. Common-

wealth v. Stabinsky, 313 Pa. 231; Commonwealth v. Wood-

ing, 355 Pa. 555; Commonwealth v. Simmons, 361 Pa. 391;

Commonwealth v. Chambers, 367 Pa. 159.

1, Not to be confused with Smith v. Baldi, 343 U. S. 973.

16 Reasons for Not Granting the Writ

Since the issue on all the post-trial proceedings was

the double one of (a) suppression of (b) relevant evidence

and since none of the Pennsylvania courts involved in this

proceeding has explicitly held the evidence involved either

not suppressed or irrelevant, the Commonwealth is not at

liberty to choose as the holding of any of the courts in-

volved, the matter of relevancy, for which there is no war-

rant in the record or in the prior Pennsylvania Law.

Furthermore, as the Court of Appeals pointed out, since

the Pennsylvania Supreme Court denied Respondent’s peti-

tion for habeas corpus without a hearing, the allegations of

that petition, including that of suppression of evidence

therein specified must be taken as true. Williams v. Kaiser,

323 U. 8S. 471; White v. Ragen, 324 U. S. 760.

Finally, Respondent submits that no proper question

for consideration oa certiorari is presented by this record.

No important question of constitutional law is in dispute.

The Commonwealth does not contest the ruling that de-

liberate suppression of relevant evidence is a violation of

the due process clause.

". he determination of Specifications No. 2 through No. 5

depends solely on a reading of the record as indicated. The

issue presented by Specification No. 6 as to the effect of

a denial of certiorari upon a subsequent application for

federal habeas corpus is already before this Court for ad-

judication in the case of United States ex rel. Smith v.

Balds, reargument ordered 343 U. S. 973, and need not be

reconsidered here. As to the issue raised in Specification

No. 7, it is clear that no Pennsylvania court in this case did

decide that evidence tending to show who killed Ingling

was not relevant to the penalty. This issue, once again,

can be determined only by reading the record. Finally, the

question of the sufficiency of the evidence in support of the

findings of fact made by the courts below, presented in

Specification No. 8 is only determinable by appraisal of

the record. ’

Reasons for Not Granting the Writ 17

In short, the Commonwealth is asking this Court, not

to decide any serious or novel question of constitutional

law, nor any matter of great public importance, but simply

to redetermine the accuracy of the reading of the record

and appraisal of the evidence on which two federal courts

have already decided against it.

Such, as this Court has clearly pointed out, is not the

function of the Writ of Certiorari.

For these reasons Respondent respectfully submits the

above entitled peiition should be denied.

Respectfully submitted,

Tuomas D. McBrinz,

Attorney for Respondent.