Commonwealth v. Almeida

66 Pa. D. & C. 351, 1948 Pa. Dist. & Cnty. Dec. LEXIS 27

• Court: Philadelphia County Court of Quarter Sessions
• Decided: December 10, 1948
• Docket: nos. 1282, 1283
• Status: Published

Opinions

Carroll, J.,

— In this case, defendant David Almeida was indicted for having caused the death of Cecil Ingling, a police officer of the City of Philadelphia, on January 30, 1947, opposite an Acme Market located at 1934 Fairmount Avenue in the City of Philadelphia, immediately following a robbery which he and his codefendants, James Francis Smith and Edward Hough, jointly indicted with him, had just effected in this store. After firing several shots, one of which killed Patrolman Ingling, the three were pursued by police and Edward Hough was apprehended after he had fallen or had been pushed out of the car. The other two escaped. Shortly thereafter Hough pleaded guilty and after hearing the evidence affecting him the court made a finding of murder in the. first degree and fixed the penalty of death.

Smith and Almeida having made their escape, went south, participated in a holdup of a bank in New Orleans and were subsequently arrested in the Middle West. They were tried in United States district court in Louisiana for the bank holdup and sentenced to long terms in a Federal penitentiary. They were then returned to Philadelphia in custody of the United States marshal as Federal prisoners to stand trial on this bill. The fact of their apprehension, trial and sentence and their being in the custody of the United States marshal was carefully kept from the jury in this case. There was no evidence of any of the previous record of Almeida before the jury for its consideration in the matter of fixing the penalty.

The evidence for the Commonwealth consisted of the testimony of 31 persons, some of whom were eye witnesses who identified defendant as having been present, while defendant offered but one witness whose testimony was limited to an expression she heard given by someone immediately after the shooting. Defendant pleaded not guilty and did not take the witness stand. The jury found a verdict of murder in the first degree and fixed the. penalty at death. Codefendant Hough, his wife, and an uncle, Edward Mooney, testified against defendant, the two latter to the association of the three men, on the day of the robbery. The facts of the case are as follows:

Sometime before noon on the morning of the robbery Almeida went to Hough’s home at 5101 Arch Street in West Philadelphia, arriving in a taxicab. He was well-known to the Hough family, having been acquainted with Hough for many years prior to the events of this case. He remained there about 15 minutes and asked Hough to accompany him, which Hough did. They took the cab, which had remained outside, and went to Kenney’s taproom in Northwest Philadelphia. En route Almeida told Hough’ that he had no money and Hough paid the fare. They were known in this taproom which was in the vicinity of the home of James Smith and their presence together was testified to by the bartender and the proprietor. While they were there Smith joined them, left for about 15 minutes, returned for a short time and left again. He then returned and all three took a trolley car to the central part of Philadelphia where Hough drew $90 from the Philadelphia Saving Fund Society and gave Smith and Almeida $10 each. During all this time they had several drinks of whiskey in various taprooms en route. They then went to the home of a cousin of Almeida in the neighborhood of Twenty-fourth and Spruce Streets and from there to a taproom near Twenty-second and Fitzwater Streets where Joseph Almeida, a brother of defendant, was employed. In what has been described as a cubicle in this taproom Smith distributed a .45 automatic Army type revolver to Hough, a large pistol to Almeida, which Hough said looked like a horse pistol, and exhibited a smaller one which he retained himself. At the trial Hough identilled the pistol he had used, which was recovered by the police immediately following his arrest. A .22 calibre revolver, fully loaded, recovered in the abandoned car about two hours after the arrest, was in evidence. The pistol alleged to have been in the hands of Almeida was not recovered.

They proceeded from the taproom at Twenty-second and Fitzwater Streets to the vicinity of Fifty-first Street and Haverford Avenue, in West Philadelphia, and the suggestion came from one of them that a car be obtained from some garage. Hough then suggested a garage on 673 North Forty-first Street, just off Haverford Avenue, to which all three men repaired. According to Otis Oliver, who was in charge of this garage, the three, wearing black glasses, entered sometime between 4:30 and 5:00 o’clock. All three drew revolvers and Hough ordered the witness to face the wall and, according to the witness, Hough hit him with the pistol, but according to Hough, Almeida slapped him. The witness was commanded to produce keys for the cars that were in the garage and then after a survey of all the cars in the garage they decided to take a car described throughout the testimony as a blue car, ordered the witness to start the motor, turn on the lights, stop the motor and turn off the lights, which he did. They left the garage in this car with Smith at the wheel. The car was the property of the City of Philadelphia and had a faded inscription of the city’s ownership on both side doors.

They then proceeded from this point over the Spring Garden Street Bridge to the vicinity of Twentieth Street and Fairmount Avenue. At this point Smith said: “This looks like a good place”, whereupon he parked the car at an angle against the curb in front of 1934 Fairmount Avenue, the Acme Market. Almeida and Hough left the car and Smith remained at the wheel. Before entering the store those two stood in full view before a window and were observed and identified by one of the cashiers in the store and by the wife and son and daughter of Patrolman Ingling, whose car was parked along the curb opposite the door. Previously Ingling had done his shopping in the store and had gone down the street to pay a bill at a service station. Outside the store Hough was observed to put on a pair of black glasses and Almeida to tie a handkerchief around the lower part of his face. They then entered the store with drawn guns. Hough immediately went to one of the cash registers and emptied it, telling the girl it was a holdup. He took all the money and the cashier’s wallet which contained $3, stuffed all of it into his pocket and went to the other register and took all the money there. Meanwhile, Almeida stood at a point in the Acme Market, according to the manager, who, sensing something was wrong because of a sudden stillness, turned around and looked into a gun in Almeida’s hands. He yelled holdup and grabbed two cans of corn, whereupon Almeida shouted: “I’ll get you, you son of a bitch”, and started firing. This witness testified Almeida’s gun looked like a long gun and that it seemed to have a longer muzzle than the gun which was in court and identified by Hough as his gun. Almeida fired at least one shot either at the manager or over his head in the ceiling and as he left the store fired another shot. Altogether, $259 was taken from the Acme Market, $3 from the cashier, and Almeida grabbed some bills from a one-armed man whom he cursed and who was leaving the store in the path of Hough and Almeida.

They immediately repaired to the automobile, which Smith was backing out of position against the curb. Patrolman Ingling returned to his car about this time and the cries of holdup brought three policemen in two police cars to the scene. These officers heard the firing but were not certain of what was happening. When Officer Waters and Officer Fox, who were in one of the police cars, with Waters driving, came almost abreast of the blue car which was backing out, Hough fired a shot in their direction at a distance of about 30 feet, whereupon Waters fired a shot at him. At that time Ingling had already been shot and his body was on the pavement though the officer, who was acquainted with Ingling, did not know who he was. Officer Fox left the car, went down on his knee behind Ingling’s car and started firing.

Hough testified that the door of the blue car caught in Ingling’s car and was forced back and sprung and that he had to climb over Ingling’s fender to get into the blue car into which Almeida had preceded. He said he was in a crouched position and Almeida’s arm was over his body and while in this position Almeida fired the shot, which penetrated the brain of Officer Ingling, who apparently was making an effort to grab Hough or who had already grabbed Hough as he dove into the car. The bullet entered the. right side of Ingling’s head, above his right ear, near the edge of the frontal and parietal bone and went through his. brain, destroying it, passed out above the left eye and was not recovered. Mrs. Ingling testified very emphatically, and her son and daughter likewise testified, that the shot was fired by Smith but the three Inglings also stated that Almeida was in the driver’s seat. All the officers who gave pursuit and the eye witnesses at the scene, as well as Hough, testified that Almeida was in the center position on the front seat and that Smith was at the wheel.

The cross-examination by the defense was directed to show that it was a police officer’s bullet that had killed Ingling but it was never clearly established from which gun the fatal bullet was fired, although the preponderance of evidence on this point was that Ingling had been shot before the police opened fire and from the position of the various police officers while they were firing and Ingling’s body at the side of the stolen car it appeared affirmatively that Ingling was never in the line of fire of any of the police officers’ revolvers.

After the blue car containing the three defendants got away from the curb it was pursued by the two red cars and one of the men in the blue car fired back at the pursuing cars. After a chase of some blocks Hough either fell or was pushed out of the car and was captured by Patrolman Fox. While Hough was in this custody but before being taken to the police station an unidentified colored man came up and handed Patrolman Fox the .45 calibre Army automatic which Hough identified the next day and at this trial as the pistol he had. It had unusual identifying characteristics, being two special white-colored grips with brown streaks and varying greatly from the standard grips usually found on this type of gun.

Officer Waters continued the pursuit of the blue car and lost it. It was recovered about 7:15 p.m. in front of 2714 West Somerset Street, the motor still running, by Sergeant Kronberger and Officer Kauffman. This place is in the vicinity of Smith’s home and Kenney’s taproom. At the time of its recovery the .22 calibre revolver, fully loaded, and a pair of black glasses, were found on the driver’s seat.

The theory upon which the Commonwealth tried this case was that it was a killing in the perpetration of a robbery. The theory of the defense, gathered mainly from its cross-examination, was that the fatal shot was fired by one of the police officers and, therefore, the responsibility for it could not be attributed to defendant. In his address to the jury, defendant’s counsel referred only briefly to the facts of the case, and among other things stated that he “never contended he (Almeida) was not in the holdup”, and as to stealing the car, he said “we do not contend that”. He also made the following statement“As to the fact of the holdup we have no complaint”.

Inasmuch as defendant’s plea of “not guilty” had not been changed, it appeared to the court that these statements could be construed to amount to a waiver of defendant’s constitutional and other rights, his plea of “not guilty” being a general traverse and denial of all the charges, and, therefore, the court charged at length that irrespective of such statements by defendant’s counsel, defendant remained innocent until the jury found him guilty of all charges beyond a reasonable doubt.

Another theory advanced by defendant and urged upon the jury was that defendant was not in full possession of his senses due to the fact that he had been drinking. However, he offered no evidence on the point of intoxication and relied entirely upon his own expressions to the jury, some of which were as follows: “Did Almeida have full use of his senses?” “Drinking does mitigate the circumstances and the punishment”. The trial court being of opinion that these statements and the testimony of drinking, though coming only from the Commonwealth’s witnesses, might be construed to raise the question of intoxication as a defense, included in its charge the law relating to that subject. While no error has been assigned to that portion of the charge we have examined it carefully and find that it discloses no error.

In proper time following the verdict 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 and in the manner whereby two members of the jury were peremptorily challenged after having previously been accepted and sworn. 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 majority of the court has come to the conclusion that the reasons advanced are insufficient for us to set aside the jury’s verdict and accordingly defendant’s motion must be denied.

It should be noted at the outset that this defendant did not at the trial, nor does he now, raise any real dispute as to his wilful and deliberate participation and complicity in the series of violent events that ultimately led, as one could have readily foreseen, to the death of Cecil Ingling. He does, it is true, by a nimble exercise of ingenuity in the drawing of inferences from the record, seek to show that the fatal bullet came from a policeman’s gun and not from a weapon in the hands of himself or one of his confederates.

On the basis of this supposition defendant asserts that he cannot have been guilty of first degree murder and that therefore the trial judge erred in his charge and in refusing the defendant’s thirteenth point for charge, as follows:

“If you find that the bullet which was fired and killed the deceased was not fired by any of the three (3) men charged with perpetrating the robbery in question, you cannot convict the defendant of murder in the first degree.”

Whatever doubts may have existed on this question have been unequivocally settled by the recent decision in Commonwealth v. Moyer, 357 Pa. 181 (1947), which stands for the proposition that all who participate in a robbery are guilty of first degree murder if someone is killed in the course of the crime even though the fatal bullet is fired by some third person “in an attempt by him to frustrate the attempted robbery”. The Moyer case thus squarely rules one of the two chief points raised by defendant in support of his motion.

The remaining question which merits discussion may not be answered so shortly as there is no directly controlling authority but nevertheless we are of opinion that the law is adverse to defendant’s contention. Is it error to permit a juror to be challenged peremptorily after 12 have been accepted and sworn but before the two alternates authorized by the Act of May 1, 1935, P. L. 127, 17 PS §1153, have been selected and before the case has been opened to the jury? This is the issue to be decided. The pertinent facts are these: After 12 jurors had been chosen and individually sworn, a recess was taken. It then developed that juror no. 5 was properly objectionable to the Commonwealth because of certain facts not known when she was selected but which would have been sufficient for the trial judge in his discretion, to discharge her on his own motion even after she was sworn: compare Commonwealth v. Curry, 287 Pa. 553 (1926), and see Commonwealth v. Marion, 232 Pa. 413 (1911); 50 C. J. S. 1007. At a conference in chambers this matter was discussed by the trial judge, the district attorney and the defense counsel and, far from objecting to the district attorney’s challenging juror no. 5, defense counsel actually reserved the right to exercise a similar peremptory challenge despite the fact that 12 jurors had then been sworn. Thereafter, juror no. 5 was challenged in open court by the district attorney, the reason not being stated on the record to save the juror embarrassment. The remaining jurors were then moved up and another prospective juror was called, examined and challenged for cause. It was at this juncture that the defense challenged juror no. 11, who had formerly been no. 12, which challenge was allowed. The selection of the remaining members of the panel, including two alternates, was thereafter completed without incident and the case was then opened to the jury without any objection by the defense.

Having been convicted and feeling himself aggrieved principally by the imposition of the death sentence, defendant now for the first time argues that the discharge of juror no. 5 violates article I, sec. 6, and article I, sec. 10 of the Constitution of Pennsylvania, the Act of May 1, 1935, P. L. 127, 17 PS §1153, and the Act of March 6,1901, P. L. 16, as amended by the Act of July 9, 1901, P. L. 629.

We have no hesitation in holding that defendant actually consented to the procedure of allowing the peremptory challenge to juror no. 5 and that he cannot now raise as error what is quite plainly an afterthought. Furthermore, his contention concerning double jeopardy, if valid at all, had to be raised by way of special plea at the trial of which he now complains: Commonwealth ex rel. v. Richards, 274 Pa. 467. The fact that this was not done further demonstrates that defendant acquiesced fully in the procedure followed at the trial but that now, disappointed with the outcome thereof, pursues a last desperate remedy. Our views on this aspect of the argument are set forth fully in the separate opinion filed by our brother, MacNeille, P. J., in which we join.

Although the problem is not entirely free from difficulty we think that defendant’s position is without foundation for an additional reason. We are of opinion that, in a case in which there are to be 14 jurors selected under the authority of the Act of 1935 an accused is not in jeopardy until all 14 are sworn and, until that time, any one of the jurors previously accepted and sworn may be challenged within the reasonable discretion of the trial judge.

The concept of jeopardy is a highly technical one, the origins of which are to be found in the days when an accused was subject to trial by combat: Commonwealth v. Simpson, 310 Pa. 382 (1933). The Simpson case illustrates, however, that it is not without adaptability to the requirements of modern jurisprudence. Jeopardy is, of course, the peril in which a defendant is put upon his trial: Commonwealth v. Fitzpatrick et al., 121 Pa. 109, 116 (1888). But what is the precise moment when this peril begins? Is there magic in one moment rather than another?

The cases seem to speak generally in terms of the moment when the jury is charged with the prisoner (Peiffer v. Commonwealth, 15 Pa. 468 (1850); McFadden v. Commonwealth, 23 Pa. 12 (1853); Alexander v. Commonwealth, 105 Pa. 1 (1884); Hilands v. Commonwealth, 111 Pa. 1 (1885); Commonwealth v. Curry, 287 Pa. 553 (1926)), and this in turn is interpreted as being the moment when the “full jury is impanelled and all the jurors are sworn:” (italics supplied) : McFadden v. Commonwealth, supra; Alexander v. Commonwealth, supra; Commonwealth v. Curry, supra. Having in mind the provisions of the Act of 1935, it is our view that this moment must now be held to be when the last alternate juror is sworn. This appears from the provisions of the act itself giving each side a peremptory challenge in addition to those it already possesses. It cannot be doubted then that the act contemplates the exercise of challenges after 12 jurors have been chosen and until the last of 14 has been sworn. It is equally clear that the full jury in such a case is not impanelled until that point.

Some of the earlier cases indicate that a defendant is in jeopardy when the twelfth juror has been sworn (Hilands v. Commonwealth, supra; Commonwealth v. Curry, supra), but this is because they were decided before the Act of 1935. The essential question remains, that asked almost 100 years ago in McFadden v. Commonwealth, supra: “At what point is an accused called to stand upon his defense? Certainly not until the Commonwealth is ready to begin, the assault.” The obvious answer must be that assault begins when the matter of the jury is completed, and in a present day murder case, in which habitually alternate jurors are selected, that is when the fourteenth juror has been sworn.

We think that a contrary result would be a reliance upon the shadow of technicality rather than the substance of the law to which even a most jealous regard of defendant’s right does not lead us. And even if we were to consider our conclusion a change from the earlier decisions we do not conceive it as a violation of the constitutional mandate that “Trial by Jury shall be as heretofore and the right thereto remain inviolate.” As was said in Commonwealth v. Fugmann, 330 Pa. 4, 28, 29 (1938), which upholds the constitutionality of the Act of 1935:

“It is well settled that the word ‘inviolate’ as used in the constitutional provision quoted means freedom from substantial impairment. It does not import rigidity of regulation in the manner of impanelling a jury. The cardinal principle is that the essential features of trial by jury as known at the common law shall be preserved. The fundamental law preserves the substance of the right; details of administration which leave the enjoyment of the right unaffected are of no constitutional concern.”

The language used in the Federal and various State constitutions to delineate and protect our system of trial by jury may vary but the basic attributes, the preservation of which is necessary to keep the right “inviolate”, are, in the last analysis, simply number, impartiality and unanimity. So long as these three essential features are maintained in all their ancient force and effect, details of the procedure adopted in the trial court in selecting the jury are not violative of the constitutional mandate: Commonwealth v. Fugmann, supra; and see Commonwealth v. Exler, 61 Pa. Superior Ct. 423, 436 (1915); Commonwealth v. Deysher, 139 Pa. Superior Ct. 497, 501 (1940); People v. Peete, 54 Cal. App. 333, 364, 202 Pac. 51, 65 (1921); Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 68 N. W. 53 (1896).

In the case before us no right guaranteed to defendant was violated and the record discloses nothing that can be construed as a derogation of defendant’s right to trial by jury. On the contrary, the accused was accorded everything guaranteed to him by the Constitution: a trial conducted in conformity with recognized forms of law before a jury of 12 citizens who were capable of deciding his case impartially and unanimously: People v. Cosmo, 205 N. Y. 91, 103, 104, 98 N. E. 408, 411 (1912); People v. Mitchell, 266 N. Y. 15, 19 (1934), 193 N. E. 445, 446 (1934).

We are aware that in some instances the violation of a constitutional guaranty is not dependent upon the amount of prejudice suffered by an accused but it is pertinent to point out that defendant here was in no way prejudiced by the procedure followed at the trial. He took full part in the choice of the jury and all 14 were acceptable to him, for in fact he had not exhausted all his peremptory challenges when the jury was at last sworn. At no time did he express any objection to or disagreement with what occurred. Moreover, all of this happened before a single word of testimony or a single piece of evidence of any kind was introduced at the trial.

The preservation of constitutional principles is not aided by stultifying technicalities. We believe it would fly in the face of reality to hold that the slight variation that occurred under the circumstances of this case in the administrative detail of choosing the jury deprived, this defendant of any of the basic elements comprising his right to a trial by jury. He had a full and fair trial in which his defense was conducted by able counsel. He has been tried and convicted in accordance with law and we find no reason for granting a new trial.