438 Pa. 218 (1970)

Commonwealth ex rel. Smith, Appellant,
v.
Myers.

Supreme Court of Pennsylvania.

Argued November 20, 1968. January 30, 1970.

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

*219 Ellen Q. Suria, with her John R. Suria, Martin Vinikoor, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

OPINION BY MR. JUSTICE O'BRIEN, January 30, 1970:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, denying James Smith's petition for a writ of habeas corpus. The facts upon which the convictions of appellant and his cofelons, Almeida and Hough, rest are well known to this Court^[1] and to the federal courts.^[2] In addition to vexing the courts, these cases have perplexed a generation of law students, both within and without the Commonwealth, and along with their progeny, have spawned reams of critical commentary.^[3]

*220 Briefly, the facts of the crime are these. On January 30, 1947, Smith, along with Edward Hough and David Almeida, engaged in an armed robbery of a supermarket in the City of Philadelphia. An off-duty policeman, who happened to be in the area, was shot and killed while attempting to thwart the escape of the felons. Although the evidence as to who fired the fatal shot was conflicting in appellant's 1948 trial, the court charged the jury that it was irrelevant who fired the fatal bullet: "Even if you should find from the evidence that Ingling was killed by a bullet from the gun of one of the policemen, that policeman having shot at the felons in an attempt to prevent the robbery or the escape of the robbers, or to protect Ingling, the felons would be guilty of murder, or if they did that in returning the fire of the felons that was directed toward them." To this part of the charge appellant took a specific exception.

The jury convicted Smith of first degree murder, with punishment fixed at life imprisonment. He filed no post-trial motions, and took no appeal. Nor did Smith initiate any post-conviction proceedings until the instant case, despite the litigious propensities of his cofelons.

On February 4, 1966, appellant filed the present petition for a writ of habeas corpus. In his petition appellant raised the following contentions: first, that he had been denied his right to appeal and his right to the assistance of counsel on appeal from his conviction; second, that he was denied his constitutional right to a fair trial by reason of the knowing use of false testimony by the prosecution; and third, that he was denied his constitutional right to a fair trial by reason *221 of the trial judge's charge to the jury, quoted above, which was allegedly inconsistent with the rule later announced by this Court in Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472 (1958).

The court below held two hearings which were confined to the presentation of evidence in support of appellant's contention that he was denied his right to appeal. The other contentions raised by the appellant were briefed and argued to the court below, but not passed on below. The court below held that appellant had knowingly waived his right to appeal, and although the opinion does not discuss the question, the denial of relief necessarily manifested a belief by the court below that appellant was aware of his right to counsel on appeal. The other issues raised by appellant were not mentioned by the court, apparently of the view that they were cognizable only if it appeared that appellant had been denied his right to appeal, and was entitled to an appeal nunc pro tunc.

We reverse, grant the writ, allow an appeal nunc pro tunc, and grant a new trial. Appellant urges that the evidence clearly shows that he was unaware of his right to appeal from the conviction, and of his right to appointed counsel on appeal. On the other hand, the Commonwealth urges the opposite just as strongly. The Commonwealth contends that appellant was well aware of his right to appeal and his right to appointed counsel on appeal, but deliberately declined to appeal because of his fear of receiving the death penalty upon retrial if he should be successful in gaining a new trial. The Commonwealth argues in its brief: "The major consideration in appellant's choice was the possibility of a death sentence on retrial."

In view of the recent decisions in the companion cases of Commonwealth v. Littlejohn and Commonwealth v. Archambault, 433 Pa. 336, 250 A. 2d 811 (1969), we need not decide the extremely close factual *222 question of why Smith failed to appeal. Littlejohn and Archambault involved defendants who had failed to file post-trial motions or take an appeal because of an alleged fear of receiving the death sentence if successful in obtaining a new trial. In a thorough analysis of the constitutional issues involved, we held that it was violative of a defendant's constitutional rights to be placed in jeopardy of a death sentence in a second trial, once he has been found guilty of murder in the first degree and sentenced to life imprisonment. In Littlejohn both sides agreed that the reason that the post-trial motions were withdrawn was the fear that at a second trial Littlejohn might receive the death penalty. We there stated, 433 Pa. at 349: "A decision not to appeal because of such a fear cannot, as a matter of law, be a knowing and voluntary waiver of the right to appeal." We therefore granted Littlejohn an appeal nunc pro tunc. In Archambault, it was not clear on the record before us whether Archambault's failure to prosecute an appeal was the result of his lawyer's advice that such a procedure would be fruitless or the result of his fear of receiving the death penalty at a second trial. We therefore remanded the case for a hearing on the issue.

In the instant case, it is not clear whether Smith's failure to appeal resulted from his fear of receiving the death penalty on retrial, or from his lack of knowledge about his appeal rights. However, no hearing is necessary, for under either alternative, Smith did not knowingly and voluntarily waive his right to appeal. He is thus entitled to an appeal nunc pro tunc.

Moreover, since the parties have briefed both below and in this Court the issues which would be cognizable on a direct appeal, and since the issue with which we propose to deal involves solely a matter of law, we shall treat the instant proceeding as a direct appeal. See Commonwealth v. Gist, 433 Pa. 101, 249 A. 2d 351 (1969).

*223 Appellant urges that he was denied due process by virtue of the trial court's charge that it was irrelevant who fired the fatal bullet. Such a charge was consistent with the dictum of this Court in Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736 (1947), and with the holding shortly thereafter in the appeal of appellant's cofelon, David Almeida, in Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595 (1949). In the latter case, by a stretch of the felony-murder rule, we held that Almeida could indeed be found guilty of murder even though the fatal bullet was fired by another officer acting in opposition to the felony. We adopted a proximate cause theory of murder: "[H]e whose felonious act is the proximate cause of another's death is criminally responsible for that death and must answer to society for it exactly as he who is negligently the proximate cause of another's death is civilly responsible for that death and must answer in damages for it." Almeida, 362 Pa. at pages 603-04 (emphasis in original). We thus affirmed Almeida's conviction, stating at page 607: "The felonious acts of the robbers in firing shots at the policemen, well knowing that their fire would be returned, as it should have been, was [sic] the proximate cause of Officer Ingling's death."

The proximate cause theory was taken a millimeter further by this Court in Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204 (1955). In that case the victim of an armed robbery shot and killed one of the felons, Jackson; the other felon, Thomas, was convicted of the murder.

Thomas was repudiated by this Court in Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472 (1958). The facts there were virtually identical to those of Thomas; a policeman shot one fleeing felon and the other was convicted of murder. In an opinion by the late Chief Justice CHARLES ALVIN JONES, this Court interred Thomas and dealt a fatal blow to Almeida. At *224 the outset of this Court's opinion in Redline, we stated: "The decision in the Almeida case was a radical departure from common law criminal jurisprudence." The thorough documentation which followed in this lengthy opinion proved beyond a shadow of a doubt that Almeida and Thomas constituted aberrations in the annals of Anglo-American adjudicature.

Redline began with a rather general review of the entire felony-murder theory. If we may presume to elaborate a bit on that review, we should point out that the felony-murder rule really has two separate branches in Pennsylvania. The first, and the easier concept, is statutory. The Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701, provides, inter alia: "All murder which shall . . . be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree." Clearly this statutory felony-murder rule merely serves to raise the degree of certain murders to first degree; it gives no aid to the determination of what constitutes murder in the first place. Redline, pointing out that except for one isolated situation^[4] there is no statutory crime of murder, directed us to the common law for a determination of what constitutes murder. It is here that the other branch of the felony-murder rule, the common law branch, comes into play. Citing Commonwealth v. Drum, 58 Pa. 9 (1868), the early leading case on murder in the Commonwealth, and IV Blackstone, Commentaries, [*]198, Redline reaffirmed that the distinguishing criterion of murder is malice. The common law felony-murder rule is a means of imputing malice where it may not exist *225 expressly. Under this rule, the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.

The common law felony-murder rule as thus explicated has been subjected to some harsh criticism, most of it thoroughly warranted. It has been said to be "highly punitive and objectionable as imposing the consequences of murder upon a death wholly unintended."^[5] "An effect wholly unexpected and unconnected with the intention and act of the party, except by accident . . . [is] made the foundation of criminal responsibility."^[6]Redline at page 494 related that "a widely accepted and quite plausible explanation of the origin of the doctrine is that at early common law many crimes, including practically all, if not all, felonies were punishable by death so that it was of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony." With a history like that it is hardly surprising that the rule has evoked bitter comment referring to it as "a holdover from the days of our barbarian Anglo-Saxon ancestors of pre-Norman days, [having] very little right to existence in modern society."^[7]

A more temperate commentator suggests that the rule should be modified, so that a killing committed during the perpetration of a felony would create merely a rebuttable presumption of intention, rather than the conclusive presumption now created.^[8] Other opponents *226 of the felony-murder rule point out that it is hardly an essential weapon in the Commonwealth's arsenal. Our neighboring state of Ohio has managed quite well without a felony-murder rule since abolishing it over a century ago. See Robbins v. State, 8 Ohio St. 131 (1857).

In fact, not only is the felony-murder rule nonessential, but it is very doubtful that it has the deterrent effect its proponents assert.^[9] On the contrary, it appears that juries rebel against convictions, adopting a homemade rule against fortuities, where a conviction must result in life imprisonment.^[10] If added deterrence is desired, the felony-murder rule is not the right approach. The situation was well-analyzed many years ago: "To punish as a murderer, every man who, while committing a heinous offence, causes death by pure mis adventure, is a course which evidently adds nothing to the security of human life. . . . The only good effect which such punishment can produce will be to deter people from committing any of these offences which turn into murders what are in themselves mere accidents. It is in fact an addition made in the very worst way. . . . If the punishment for stealing from the *227 person be too light, let it be increased, and let the increase fall alike on all the offenders! Surely the worst mode of increasing the punishment of an offence is to provide that, besides the ordinary punishment, every offender shall run any exceedingly small risk of being hanged."^[11] To similar effect, Justice OLIVER WENDELL HOLMES, in The Common Law, argued that the wise policy is not to punish the fortuity, but rather to impose severe penalties on those types of criminal activity which experience has demonstrated carry a high degree of risk to human life.^[12] In this respect, we note the recent amendment to The Penal Code, providing for increased penalties when certain crimes are committed with firearms.^[13]

We have gone into this lengthy discussion of the felony-murder rule not for the purpose of hereby abolishing it. That is hardly necessary in the instant case. But we do want to make clear how shaky are the basic premises on which it rests. With so weak a foundation, it behooves us not to extend it further and indeed, to restrain it within the bounds it has always known. As stated above, Redline, at page 495 et seq., demolished the extension to the felony-murder rule made in Almeida: "In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed *228 to a felon for a killing incidental to his felony is malice and not the act of killing. . . . `The malice of the initial offense attaches to whatever else the criminal may do in connection therewith.' . . . And so, until the decision of this court in Commonwealth v. Almeida, supra, in 1949, the rule which was uniformly followed, whether by express statement or by implication, was that in order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. [citing a long line of cases].

"Until the Almeida case there was no reported instance in this State of a jury ever having been instructed on the trial of an indictment for murder for a killing occurring contemporaneously with the perpetration of a felony that the defendant was guilty of murder regardless of the fact that the fatal shot was fired by a third person acting in hostility and resistance to the felon and in deliberate opposition to the success of the felon's criminal undertaking." (Emphasis in original).

Redline proceeded to discuss the cases, both within and without Pennsylvania, which establish the rule that murder is not present where the fatal shot is fired by a third person acting in opposition to the felon. See Commonwealth v. Thompson, 321 Pa. 327, 330, 184 Atl. 97 (1936); Commonwealth v. Mellor, 294 Pa. 339, 342, 144 Atl. 534 (1928); Commonwealth v. Campbell, 89 Mass. (7 Allen) 541 (1863); Butler v. People, 125 Ill. 641, 18 N.E. 338 (1888); Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085 (1905); State v. Oxendine, 187 N.C. 658, 122 S.E. 568 (1924). See also People v. Udwin, 254 N.Y. 255, 172 N.E. 489 (1930); People v. Garippo, 292 Ill. 293, 127 N.E. 75 (1920). We see no reason to repeat that discussion, and simply refer the reader to Redline, 497 to 503. The Court then summarized the rule by quoting, at pages 503-04, from 13 Ruling Case Law at pp. 753-754: "`Thus, where persons *229 conspire together to commit robbery, and while carrying out such conspiracy their victim, in self-defense, discharges a fire arm at his assailants, and accidentally kills a bystander, the conspirators are not guilty of the homicide.'"

We then proceeded to distinguish the cases relied upon in Almeida. Chief among those cases was Commonwealth v. Moyer and Byron, supra. We referred to the statement in that case to the effect that a felon can be convicted of murder if the shot is fired by the intended victim as "a palpable gratuity," since the court below had charged that the defendant was entitled to an acquittal unless the Commonwealth proved beyond a reasonable doubt that one of the felons had fired the fatal bullet. We further distinguished the cases, cited in Almeida, in which the death-dealing act was committed by one participating in the initial felony. See Commonwealth v. Guida, 341 Pa. 305, 19 A. 2d 98 (1941); Commonwealth v. Doris, 287 Pa. 547, 135 Atl. 313 (1926); and Commonwealth v. Sterling, 314 Pa. 76, 170 Atl. 258 (1934). A similar factual difference was noted in the cases succeeding Almeida and relied upon by the Commonwealth, Commonwealth v. Phillips, 372 Pa. 223, 93 A. 2d 455 (1953) and Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733 (1953).

Finally, we distinguished the express malice cases. These included the so-called "shield" cases, where a felon used the interposition of the body of an innocent person to escape harm in flight from the scene of the crime. See, e.g., Keaton v. State, 41 Tex. Cr. R. 621, 57 S.W. 1125 (1900); Taylor v. State, 41 Tex. Cr. R. 564, 55 S.W. 961 (1900); and Wilson v. State, 68 S.W. 2d 100 (Ark. 1934). These cases were not based on the felony-murder rule and imputed malice, but on the express malice found in the use of an innocent person as a shield or breastwork against hostile bullets. Redline also indicated that Commonwealth v. Bolish, 381 *230 Pa. 500, 113 A. 2d 464 (1955), heavily relied upon by the dissent in that case, may have been a case of express malice. Bolish was described in Redline, at page 508, as follows: "Bolish was indicted for murder of his confederate, Flynn, who died from severe burns received while committing arson with the use of an inflammable liquid and an electric hot plate furnished by Bolish for use in setting the fire of the criminal undertaking. Under the evidence, Flynn was either (1) an accomplice of Bolish who allegedly had planned the arson or (2) he was Bolish's weak-minded tool who acted under the impulse of Bolish's influence and domination. Thus, the malice essential to charging Bolish with murder was present either (1) by imputation under the felony-murder theory, if the death was found by the jury to have occurred as a result of confederate Flynn's act in furtherance of the criminal conspiracy or (2) expressly, if Flynn was found to be merely a pliant dupe who acted on Bolish's order in performing the criminal act with highly dangerous means which threatened grievous bodily harm to the actor." (Emphasis in original). The first theory seems to be that taken by the majority in Commonwealth v. Bolish, decided on the same day that Redline was decided, 391 Pa. 550, 138 A. 2d 447 (1958), which affirmed Bolish's second conviction after the first had been reversed for trial errors. The Court pointed out, at page 553, that Bolish was actively participating in the arson, and therefore his cofelon's act was imputed to him. "The fact that the victim was an accomplice does not alter the situation, since the act which caused his death was in furtherance of the felony."

This lengthy review of Redline should have made it clear that the cases on which Almeida was based did not support the result reached therein, nor do the later cases. However, Redline was not limited merely to a factual explication of the cases on which Almeida relied. *231 Redline, at page 505, rejected the proximate cause tort analogy which Almeida found so appealing: "As we have already seen, the `causation' requirement for responsibility in a felony-murder is that the homicide stem from the commission of the felony. Obviously, the assumed analogy between that concept and the tort-liability requirement of proximate cause is not conclusive. If it were, then the doctrine of supervening cause, which, for centuries, courts have recognized and rendered operative on questions of proximate cause, would have to be considered and passed upon by the jury. But, that qualification, the Almeida case entirely disregarded."

The issue of the application of tort proximate cause principles to homicide prosecutions again arose a few years after Redline in Commonwealth v. Root, 403 Pa. 571, 170 A. 2d 310 (1961). In that case the defendant was engaged in a drag race on a public highway with another person who swerved to the left side of the road, crashed head-on into an oncoming truck, and was killed. This Court reversed Root's conviction for involuntary manslaughter, and rejected utterly the tort concept of proximate cause in criminal homicide prosecutions:

"While precedent is to be found for application of the tort law concept of `proximate cause' in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. More specifically, this area of civil law has *232 been progressively liberalized in favor of claims for damages for personal injuries to which careless conduct of others can in some way be associated. To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death.

"In this very case (Commonwealth v. Root, 191 Pa. Superior Ct. 238, 245, 156 A. 2d 895) the Superior Court mistakenly opined that `The concept of proximate cause as applied in tort cases is applicable to similar problems of causation in criminal cases. Commonwealth v. Almeida, 362 Pa. 596, 603, 611, 68 A. 2d 595 (1949).' It is indeed strange that the Almeida case should have been cited as authority for the above quoted statement; the rationale of the Almeida case was flatly rejected by this Court in Commonwealth v. Redline, 391 Pa. 486, 504-505, 137 A. 2d 472 (1958), where we held that the tort liability concept of proximate cause is not a proper criterion of causation in a criminal homicide case." (Emphasis in original).

Such an approach has met with approval from the commentators: "It seems preferable, however, to impose liability only for homicides resulting from acts done in furtherance of the felony. A closer causal connection between the felony and the killing than the proximate-cause theory normally applicable to tort cases should be required because of the extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with who shall bear the burden of a loss. Requiring this closer causal connection, although *233 it precludes the imputation of the act of killing under the felony-murder rule, would not relieve a felon from responsibility for homicides committed by a cofelon since one member of a conspiracy is responsible for the acts of his coconspirators committed in furtherance of the object of the conspiracy."^[14]

After this review of Redline, the uninitiated might be surprised to learn that Redline did not specifically overrule Almeida.^[15] This Court did overrule Thomas, holding that no conviction was possible for a justifiable homicide, where a policeman shot a felon, but "distinguished" Almeida on the ground that the homicide there, where an innocent third party was killed by a policeman, was only excusable. This distinction was rather remarkable in view of the cases relied upon by the Court — almost all cases in which the victim was an innocent third party rather than a felon. See, e.g., Commonwealth v. Thompson, supra; Commonwealth v. Mellor, supra; Butler v. People, supra; and State v. Oxendine, supra. The Dissenting Opinion in Redline observed that the majority, in order to reverse Redline's conviction had "to expressly overrule . . . Commonwealth v. Almeida . . . [and] . . . repudiate all the basic reasons and fundamental principles upon which this Court's prior felony murder decisions were predicated in . . . Commonwealth v. Almeida . . ." (Emphasis in original). We have already quoted from the opinion of this Court in Commonwealth v. Root, supra, where the writer of the majority opinion in Redline wrote for the Court that "the rationale of the Almeida case was flatly rejected by this Court in Commonwealth v. Redline. . ."

In fact, even the majority in Redline seemed to realize that they were seizing upon a will-of-the-wisp *234 in attempting to refrain from then overruling Almeida: "It is, of course, true that the distinction thus drawn between Almeida and the instant case on the basis of the difference in the character of the victims of the homicide is more incidental than legally significant so far as relevancy to the felony-murder rule is concerned:. . . In other words, if a felon can be held for murder for a killing occurring during the course of a felony, even though the death was not inflicted by one of the felons but by someone acting in hostility to them, it should make no difference to the crime of murder who the victim of the homicide happened to be." Redline, at pages 509-10.

The "distinction" Redline half-heartedly tries to draw has not escaped criticism from the commentators. While the result reached in Redline and most of its reasoning have met with almost unanimous approval, the deus ex machina ending has been condemned. One learned journal has commented:

"It seems, however, that Almeida cannot validly be distinguished from [Redline]. The probability that a felon will be killed seems at least as great as the probability that the victim will be an innocent bystander. Any distinction based on the fact that the killing of a felon by a policeman is sanctioned by the law and therefore justifiable, while the killing of an innocent bystander is merely excusable, seems unwarranted. No criminal sanctions now attach to either in other areas of criminal law, and any distinction here would seem anomalous. Indeed, to make the result hinge on the character of the victim is, in many instances, to make it hinge on the marksmanship of resisters. Any attempt to distinguish between the cases on the theory that the cofelon assumes the risk of being killed would also be improper since this tort doctrine has no place in the criminal law in which the wrong to be redressed is a public one — a killing with the victim's consent is *235 nevertheless murder. It is very doubtful that public desire for vengeance should alone justify a conviction of felony murder for the death of an innocent bystander when no criminal responsibility will attach for the death of a cofelon."^[16]

Redline concluded, at page 510, in this manner: "The limitation which we thus place on the decision in the Almeida case renders unnecessary any present reconsideration of the extended holding in that case. It will be time enough for action in such regard if and when a conviction for murder based on facts similar to those presented by the Almeida case (both as to the performer of the lethal act and the status of its victim) should again come before this court." The time is now. The facts are not merely similar to those of Almeida; they are identical, Smith and Almeida being cofelons. The case law of centuries and the force of reason, both dealt with in great detail in Redline and above, require us to overrule Almeida.

Nor are we prevented from so doing in this case by our decisions in Com. ex rel. Hough v. Maroney, 402 Pa. 371, 167 A. 2d 303 (1961), cert denied, 366 U.S. 971 (1961); Com. ex rel. Almeida v. Rundle, 409 Pa. 460, 187 A. 2d 266 (1963); and Com. ex rel. Hough v. Maroney, 425 Pa. 411, 229 A. 2d 913 (1967). All of those were habeas corpus proceedings, in which Smith's cofelons sought release by virtue of the change in law that had occurred since their convictions had become final, asking us to give retroactive effect to Redline. In Hough (402 Pa. at 375-76) we stated: "The basic fallacy of the appellant's contention lies in the fact that the felony-murder rule laid down in the Redline case, supra, which is now the law of Pennsylvania, was not enunciated until 1958, more than ten years after the appellant's *236 conviction and sentence. Under the felony-murder rule as it existed in this State at the time of the appellant's plea of guilty to a charge of murder generally, his conviction of murder in the first degree and his ensuing sentence to death, who fired the fatal shot was irrelevant to the guilt of the felonious conspirator so long as it was fired in aid of or in resistance to the perpetration of the felony." Similarly, in Almeida (