*1 Appellant, Commonwealth ex rel. Smith, Myers. November 1968. Before C. J.,
Argued Bell, O’Brien JJ. Eagen, Roberts, Cohen, Jones, Ellen Q. with her Suria, John R. Martin Suria, Assistant Vinilcoor, and Herman Pollock, I. Defender, for appellant. Defender,
James D. Assistant Crawford, District Attorney, him with Richard A. First Sprague, Assistant District and Arlen Attorney, District Specter, Attorney, appellee. Commonwealth,
Opinion by Mr. Justice O’Brien, January 30, 1970:
This
an appeal
from
order
the
of
of
the Court
Common Pleas of Philadelphia
James
denying
County,
petition
Smith’s
for a
of
corpus.
writ
habeas
facts
The
upon which the convictions of appellant
co-
felons, Almeida
to
rest are well
Hough,
known
this Court1 and to the federal
courts.2
addition
the
vexing
perplexed
these cases
courts,
genera-
have
tion of law
both
Com-
within
without
the
students,
monwealth,
along
spawned
with their
have
progeny,
reams of critical commentary.3
1
247,
Hough,
(1948) ;
See Commonwealth v.
358 Pa.
A. 2d
56
84
Hough Maroney,
371,
Com. ex rel.
(1961),
v.
402 Pa.
The convicted filed imprisonment. fixed at He life punishment with and Nor did appeal. took no post-trial no motions, the until post-conviction proceedings initiate any Smith co- propensities the despite litigious his case, instant felons. present pe- filed appellant February 4, 1966,
On
corpus.
ap-
petition
of habeas
his
for writ
tition
contentions:
that
following
raised the
pellant
first,
appeal
right
his
to
to
right
been denied
his
had
conviction;
on appeal
of counsel
his
assistance
to
denied his constitutional
right
that he was
second,
use of
tes-
knowing
reason of the
false
by
trial
a fair
that he was de-
third,
prosecution;
by
timony
to a fair trial
reason
right
by
his constitutional
nied
Felony Murder,
; Ludwig,
Death m
Pitt.
18 U.
Foreseeable
(1956)
Notes,
(1958),
;
Harv. L.
(1956)
Rev. 1565
and Case
Rev. 51
L.
Pa. L. Rev.
U.
of judge’s
trial
quoted
to the
charge
jury,
above,
which was allegedly inconsistent
later
rule
announced by this Court in Commonwealth v. Bedline,
The court below held con- two which were hearings fined to the presentation of of ap- evidence support pellant’s contention that he denied his to right ap- peal. The other appellant contentions raised were briefed and to but not argued the court below, passed on appellant below. The court below held that had to knowingly although waived his right appeal, the opinion does not discuss the the denial of question, relief belief court necessarily manifested a be- low that appellant right aware of his to counsel on were appeal. appellant raised by other issues mentioned of the view apparently court, they appeared appellant were if it cognizable only had and was entitled been denied his right appeal, to an appeal pro nunc tunc. appeal nunc grant
We allow writ, reverse, urges trial. pro Appellant a new tunc, grant of his that he was unaware clearly shows evidence right and of from the appeal conviction, right On other appeal. hand, on counsel to appointed just opposite strongly. urges the Commonwealth that appellant was well contends The Commonwealth right appointed and his appeal his right aware appeal declined to deliberately but appeal, counsel upon the death receiving penalty fear of his because trial. gaining successful new if he should retrial *4 brief: “The con- major its argues The Commonwealth choice was the of a possibility in appellant’s sideration on retrial.” sentence death companion decisions in the recent of
In view and Common- Littlejohn Commonwealth of cases 250 A. 2d Archambault, wealth extremely close not decide need factual we (1969), question why appeal. Smith failed to Littlejohn Arehambault involved to defendants who had failed file post-trial motions of an appeal take an because fear alleged receiving the death if success- sentence ful in In analysis a new trial. a obtaining thorough it of the constitutional issues we held that involved, violative of a to rights defendant’s constitutional placed be of a death in a second jeopardy sentence once he been found has murder trial, In degree imprisonment. first and sentenced to life that agreed both sides reason Littlejohn at fear motions were withdrawn was the post-trial Littlejohn pen- trial receive death might second at 349: We there “A decision alty. stated, of such a to because fear as a matter appeal cannot, of. right knowing voluntary be a waiver law, an granted Littlejohn appeal therefore We appeal.” on it was not clear Arehambault, tunc. pro nunc failure before us whether Archambault’s the record result of his ad- appeal lawyer’s was the prosecute be or the procedure such a would fruitless vice death at penalty his receiving fear result for a remanded case trial. We therefore second on the issue. hearing Smith’s is not clear whether
In the instant case,
from his fear
appeal
receiving
resulted
failure
knowledge
or from
lack
his
retrial,
penalty
death
no
is neces-
appeal
hearing
rights. However,
about
not know-
Smith did
for under either alternative,
sary,
right
appeal.
He
waive his
voluntarily
ingly
tunc.
pro
nunc
appeal
to an
thus entitled
below
have briefed both
parties
since
Moreover,
would
cognizable
the issues which
in this Court
we
since the issue
appeal,
direct
on a
matter of
shall
we
solely
involves
law,
to deal
propose
appeal.
a direct
See
proceeding
instant
treat
Thomas was this Court in Common 137 A. 2d Redline, wealth 472 (1958). virtually there were identical facts The those one shot policeman fleeing felon Thomas; and the of murder. In an opinion convicted other Chief Justice this in late Alvin Charles Jones, a fatal dealt blow to Thomas terred Almeida. At the outset of opinion this Court’s stat- we Medline, ed : “The decision in the Almeida case was a radical de- from common law parture jurisprudence.” criminal documentation thorough followed proved opinion beyond a shadow of a doubt lengthy *6 Thomas Almeida and that constituted in aberrations of Anglo-American adjudicature. annals the with a rather the began general Medline review of If presume felony-murder theory. we to may entire point a bit on we should out that review, elaborate rule has two felony-murder really separate branches The the easier Pennsylvania. first, in is concept, The Act June P. L. statutory. 24, 1939, §701, 872, inter alia: “All murder which provides, §4701, 18 P.S. perpetration committed or at- ... be of, shall any to bur- perpetrate arson, rape, tempting robbery, shall be murder de- kidnapping, the first glary, of murder shall other kinds be murder All gree. this Clearly statutory degree.” felony-mur- the second to raise the of certain degree serves merely rule der no gives aid to the deter- degree; first murders place. murder the first constitutes of what mination except for one isolated situ- out pointing Medline, statutory crime of directed no is murder, there ation4 for a determination of law what con- the common us to here that the other It is branch murder. stitutes the common comes law branch, rule, felony-murder v. Drum, 58 Pa. 9 Citing play. into on murder case Com- leading early (1868), Blackstone, Commentaries, *198, IV monwealth, distinguishing criterion of reaffirmed Medline common law felony-murder rule malice. is murder malice where it not exist may imputing means ais death-dealing means of intentional train- is That situation §4919; P. L. 18 P.S. see Comm wrecking. June Act 2d Johnson, 81 A. onwealth expressly. necessary Under the malice rule, killing, even an make a accidental con- murder, one, structively inferred from the malice incident perpetration felony. initial felony-murder expli-
The common law rule as thus subjected has cated been to some harsh most criticism, thoroughly of it warranted. It has been said punitive “highly objectionable imposing con- sequences upon wholly of murder a death unintended.”5 unexpected wholly “An effect unconnected with except party, intention and act . accident . . responsibility.”6 made the foundation of [is] criminal page widely accepted Bedline at related that “a explanation quite plausible origin of the doctrine early many including that at common law crimes, practically punishable if not all, all, felonies were particular death so that it of no moment whether hanged felony condemned was the initial *7 accidentally resulting felony.” death from the With history hardly surprising like a that it is that the rule referring has bitter comment evoked to it as hold- “a days Anglo-Saxon from the of our over barbarian an- pre-Norman days, [having] very right cestors little society.”7 in modern to existence temperate suggests A more commentator that killing be so that modified, rule a should committed perpetration during felony of a would create mere- presumption ly rebuttable a rather intention, than presumption now op- created.8 the conclusive Other Proposed 5 Code, Revision Minnesota Criminal Pirsig, 47 (1963). 417, 427-28 Rev. L. Minn. Report 6 on Commissioners (1839) Criminal Law Fourth op. cvit., Ludwig, quoted 52. xxviii-xxix, Administration, 7 Law Mueller, Criminal 34 N.Y.L. Rev. (1959). 83, 98 Felony-Murder 8 Relations and the Crum, Causal Rule, 1952 Q., 205. LawU. Wash. point it is
ponents felony-murder rule out ar an essential in the Commonwealth’s hardly weapon Ohio managed senal. Our state of has neighboring abolish well without a rule since quite felony-murder it ing ago. over a See Robbins century State, Ohio St. felony-murder is the rule nonessen- only fact, it but is doubtful it has the deterrent
tial, very ap- effect On proponents its assert.9 the contrary, pears juries rebel against adopting convictions, homemade rule where conviction against fortuities, If deter- imprisonment.10 must result added life rence right is rule is not the desired, felony-murder approach. years The situation was well-analyzed many “To ago: punish man while as murderer, every who, pure death a heinous causes committing offence, noth- mis is a course adds evidently which adventure, to the of human . . . The ing security only good life. produce will punishment effect which such can deter from of these offences people committing any turn into what mere murders are themselves addition very It in fact an made accidents. If punishment ... stealing worst way. opinion (now dissenting See, e.g., Justice Chief Jus Redime, supra, stated: tice) where he in Commonwealth Bell appalling sweeping our which is crime wave “The brutal stop coddling, only stop Country if Courts halted can be made murderers, criminals technicalities freeing communists in Commonwealth statement effect To similar of straw.” (1939) Kelly, : “To this A. 2d 805 any injury he fatal criminal malicious as a answer one must intentionally being by anything him done *8 a human here causes attempted uintentionally during commission or commission the mainspring felonies, of malice specified is any every ambit enterprise within latter’s act and his outlawed
his quality. essential to a rule is Such imputable that base to is added). (Emphasis human protection life.” -of op. cit.,
10 Ludwig, 62. See
227 person light, be too let it be in- let the increased, Surely fall on crease alike all the offenders! the worst increasing punishment mode of an to offence is provide ordinary every punishment, besides the that, any exceedingly being offender run shall small risk of hanged.”11 To similar Justice Oliver Wendell effect, argued in The Common the wise Law, Holmes, punish policy fortuity, is not to rather im- but to pose penalties types severe those of criminal activi- ty experience carry high which has demonstrated a de- gree of respect, risk to human life.12 In this note we providing the recent amendment The Penal Code, penalties for increased when certain crimes are com- mitted with firearms.13 gone lengthy
haveWe into this discussion of the felony-murder purpose hereby rule not abol- ishing hardly necessary it. That in the case. instant shaky But do we want make clear how are the basic premises on which rests. With so weak a foundation, it behooves us not to extend it further and indeed, always restrain it within bounds it has As known. page seq., stated at 495 et above, Redone, demolished felony-murder extension rule made Al- adjudging felony-murder, “In meida: a it is to re- thing imputed membered at all times that the which is 11 Report Law, (1846), on Criminal Second Commissioners quoted Russell, (10th 1950) op. Morris, cit., Crime ed. n.3, 68. at Holmes, Common Law 1968, approved July 30, provides, Act No. 227 1968. It committing convicted of inter alia: “Whoever crime vio purposes lence, rape, murder, for the this section means building robbery, burglary, entering a with intent to commit participation kidnapping therein, during in riot and crime possession shall, had firearm thereof in addi commission prescribed penalties law, undergo be sentenced to tion to years (5) than five imprisonment less for not than more years.” (10) ten *9 228
to a felon for
killing
a
incidental
to his
is malice
felony
not
killing.
and
the act
.
..
‘The malice of
initial
to
offense attaches
whatever else the criminal
do
may
in connection
. .
therewith.’
. And
until
the decision
so,
in
of this court
Commonwealth
v.
supra,
Almeida,
uniformly
the rule which was
whether
1949,
followed,
or
express statement
that
by
by implication, was
for
to convict
must
order
felony-murder,
killing
or
been done
by
accomplice
have
by
defendant
one
acting in
furtherance
confederate
undertaking,
[citing a
line of
long
cases].
felonious
reported
Almeida case there
no
in-
“Until
of a
ever
jury
having
in this State
been instruct-
stance
indictment
of an
murder
kill-
the trial
ed
perpetration
occurring contemporaneously
ing
defendant
murder
guilty
that
felony
of a
fact
the fatal shot
of the
was fired
regardless
acting
hostility
resistance to
person
a third
to
opposition
of the
in deliberate
success
felon
undertaking.”
(Emphasis
in original).
criminal
felon’s
to discuss the
within
both
proceeded
cases,
RedUne
which establish
the rule
Pennsylvania,
without
where the fatal
shot is fired
present
murder
felon.
opposition
acting
See
person
third
321 Pa.
184 Atl.
Thompson,
327, 330,
Commonwealth
Mellor,
342,
339,
(1936);
97
Commonwealth v.
89
Campbell,
(1928);
534
Atl.
144
Butler v.
Ill.
(1863);
541
125
Allen)
People,
(7
Mass.
Commonwealth v.
121
(1888);
338
Moore,
18 N.E.
641,
State v.
(1905);
187
Oxendine,
1085
S.W.
88
Ky.
(1924). See also People v. Ud
568
122 S.E.
N.C.
N.E.
(1930);
People
N.Y.
win,
This Almeida was based did on which cases clear nor do the later reached therein, result support not limited merely Redline However, cases. on which Almeida re- cases explication factual lied. at Redime, page proximate rejected tort cause which Almeida found analogy appealing: so “As have ‘causation’ we already seen, requirement for homi- responsibility felony-murder cide stem from the commission of the Obvious- felony. concept the assumed between that and the ly, analogy proximate cause is not tort-liability requirement con- clusive. If it of supervening then the doctrine were, for recognized courts have cause, which, centuries, operative proximate cause, rendered questions passed upon would have be considered and en- the Almeida case jury. But, qualification, tirely disregarded.” application proximate of tort cause
The issue to homicide arose a few principles prosecutions again Redline in Commonwealth v. after years Root, A. 2d 310 that case the defendant public in a race on a drag highway engaged swerved to the left side of the road, who person another into an and was oncoming truck, head-on crashed in- reversed conviction killed. This Court Root’s the tort rejected manslaughter, utterly voluntary prose- in criminal homicide cause concept proximate : cutions application is to be found for precedent
“While concept ‘proximate cause’ in fixing of the tort law want of any for criminal homicide, responsibility use criminal lia- determining its rational basis When disregarded. no longer properly can bility first borrowed the field cause was proximate prosecutions to homicide in Penn- applied tort law much concept connoted a more direct sylvania, alleged culpable re- producing relation causal *12 Proximate an essen- today. does cause, than sult founded in a tort has under- negligence, tial element and is still a marked times, undergoing, in recent gone this area of civil specifically, More law has extension. been for liberalized in favor of claims progressively con- damages personal injuries to which careless duct of others can in To way per- some be associated. in concept sist the tort applying proximate liability prosecutions cause to for criminal homicide after expansion marked in civil of defendants tort liability possible actions to extend negligence would be persons criminal liability chargeable with unlawful reckless conduct circumstances con- generally the likelihood present sidered to of a resultant death. “In (Commonwealth this case very Root, Superior Ct. A. Superior 895) 2d 238, 245, opined proxi ‘The mistakenly concept applied in tort applicable mate cause as cases is of causation in criminal cases. problems similar Com 2d Almeida, monwealth A. It is indeed the Almeida strange 595 (1949).’ have been cited as authority case should for the above of the statement; rationale Almeida quoted case this Court rejected by flatly 137 A. 486, 504-505, (1958), 2d Redline, proxi the tort liability concept held where we proper is not a criterion causation ain cause mate case.” (Emphasis homicide original). criminal approval met has with from the approach Such “It seems to im- preferable, however, commentators: for homicides liability only resulting acts pose A felony. closer causal furtherance con- done and the felony than the killing between nection applicable normally theory to tort proximate-cause because of the required extreme penalty- should cases for felony murder conviction to a attaching the underlying rationales crimi- between difference former is intended to law. impose tort nal and cases while the latter appropriate pri- punishment bear shall who the burden of a concerned marily causal closer connection, although Requiring loss. *13 precludes imputation hilling of act under felony-murder would not felon from rule, relieve a responsibility for homicides committed cofelon a conspiracy responsible since one member a coconspirators acts of his in committed furtherance object conspiracy.”14 of the might After this review Redline, the uninitiated surprised specifically to learn that Redline did not overrule Almeida.15 This Court did overrule Thomas, holding possible justifi that no conviction was for a policeman able where a homicide, a shot but “dis felon, tinguished” ground Almeida on the that the homicide party there, where an innocent third killed was policeman, only excusable. This distinction was upon by rather in remarkable view of the cases relied the Court—almost all in cases which the victim was party e.g., innocent third rather than felon. See, Thompson, supra; Commonwealth v. Commonwealth v. supra; People, supra; Butler v. Mellor, v. and State supra. Dissenting Opinion Oxendine, in Redline majority, in observed that the order to reverse Red- expressly line’s had “to conviction overrule . . . Com repudiate . . . . [and] monwealth v. Almeida . . all the principles upon and fundamental basic reasons prior felony predi murder decisions this Court’s were (Empha in . . Commonwealth Almeida . . .” cated . already quoted opin original). have We from the sis supra, Commonwealth ion Root, majority opinion of the writer Redline where “the Court that rationale of the Almeida wrote rejected by flatly this Court in case was . . .” Redline majority in Redline even seemed fact, seizing upon they will-of-the-wisp were realize that op. cit., Rev., 1565. L. Harv. Concurring Opinion in his in RedUne did Cohen Justice Almeida. overrule would state Almeida: attempting overruling to refrain from then distinction drawn
“It thus course, true is, on the basis between Almeida and the instant case the difference the character of the victims so significant is more incidental than legally homicide concerned: far to the rule is felony-murder as relevancy murder if can be held for ... In other a felon words, of a felony, for a the course occurring killing during one of the death not inflicted though even *14 it hostility in to acting but someone by them, felons to the crime murder who should malee no difference Redime, be.” happened homicide to the victim of the at 509-10. pages to half-heartedly tries
The “distinction” Redline commentators. criticism from the escaped draw not has of its Redline and most the result reached in While unanimous approval, almost have met with reasoning One has been condemned. deus ex machina ending commented: learned has journal be cannot that Almeida however, validly “It seems, probability from distinguished [Redline]. proba- great at least as as killed seems felon will be bystander. an innocent the victim be will bility of a on the fact that the killing based distinction Any sanctioned is law policeman aby felon of an killing while the innocent justifiable, therefore No unwarranted. seems merely excusable, is bystander to either in other now attach areas sanctions criminal distinction seem here would any law, of criminal make to the result on the hinge Indeed, anomalous. in many to make is, the victim instances, character marksmanship resisters. at- Any on hinge between the eases the theory distinguish to tempt of being the risk would killed assumes cofelon that the place tort doctrine this has no since improper also to wrong in which be redressed law criminal in the with the killing victim’s one—a consent public is a public murder. It doubtful nevertheless is very conviction justify desire for should alone vengeance bystand- for the death of an innocent murder felony attach for er when no criminal will responsibility death of cofelon.”16 manner: page
Redime
at
concluded,
decision
place
“The limitation which we thus
on the
present
the Almeida
renders unnecessary any
case
reconsideration
of the extended
that case.
holding
if and
regard
It
in such
will be time
action
enough
similar
when a
murder based on facts
conviction for
presented
(both
those
the Almeida case
vic-
performer of
lethal
and the status
its
act
time
tim) should
court.” The
come before this
again
now. The
similar
those
merely
facts are
being
Almeida
Almeida,;
are
Smith and
they
identical,
and the force
cofelons. The case
of centuries
law
Redime
both dealt with in
detail
reason,
great
Almeida.
require us
overrule
above,
this case
doing
Nor are
so
prevented
we
Hough Maroney,
our
in Com. ex rel.
decisions
366 U.S.
cert denied,
A. 2d 303 (1961),
Rundle,
ex rel. Almeida v.
Com.
(1961);
*15
ex
Hough
Com.
rel.
(1963);
pellant’s conviction and sentence. Under the felony- murder rule as it time existed in this at State the appellant’s plea of murder to a charge generally, degree conviction of murder in the first and his fatal ensuing sentence to who fired the death, shot was irrelevant to the con- guilt of the felonious spirator so fired in or in resistance long as was aid of in Al- perpetration of the felony.” Similarly, meida (409 462) legality at said: “The we appellant’s conviction is and must be governed time of said law as it existed at Pennsylvania reaffirmed this view conviction.” We most recently Pa.). Hough (425 at
All three of those collateral were cases, however, the instant case tacks on the convictions. By contrast, three col direct appeal. is now on Although it existed as spoke attack the law cases, lateral we were not of the relator’s we at the time “conviction”, situation where the convic time faced with a at that con Hough’s as here. become yet tion had not final, a result of his appeal, had become final as viction take failure to final virtue of his became Almeida’s is not Smith’s conviction contrast, here, an appeal. suggest would No one appeal. on direct final, princi settled be violating any Court would and revers in the law making change of law ples at the time the law though even conviction, ing occurred has the conviction. This supported conviction con landmark practically every times, innumerable Nor result should the case. criminal stitutional rather nunc tunc pro appeal where different any In Commonwealth after conviction. immediately than A. 2d 32 we conclu (1968), Pa. 256, Little, in the late Justice made suggestion rejected sively Jefferson, opinion Musmanno’s in a nunc pro 412 (1968), A. 2d *16 entitled to those only is appellant appeal tunc
237
if
been time
rights
appeal
which
would had
had
Commonwealth v.
We
ly
See,
supra.
filed.
also,
Gist,
would
pointed
approach
out
such an
lead
in attempting
Court into a dreadful
factual morass
speculate
appeal
to the
an
would
as
time
length
immedi
perfected
have
if it had
filed and
taken
been
right con
conviction. Little involved a
ately upon
Supreme
ferred
of the United States
decisions
deriv
tacit
Court,
proscription
admissions,
against
Ct.
from Miranda v.
S.
ing
384 U.S.
Arizona,
84 Ct.
S.
(1966)
Malloy v.
Appellant precluded is no from as- therefore way serting his claim that Almeida should be We overruled. give thus Almeida it out of limbo, its taking burial, into the plunging downward bowels earth.17 appeal
The order of the court below is reversed, granted. allowed nunc new trial is pro tune, Eager Mr. concurs the result. Justice Dissenting Opinion Redline, p. Where fn.* See Justice) opin (now majority “In laments: Chief Justice Bell Almeida, ion, coffin, like Mohammed’s is sus Commonwealth However, pended Heaven earth. unlike Mohammed’s between upward Heaven, coffin, toward headed the coffin con pointed prepara Almeida is taining downward in speedy flight earth.” into the bowels for a tion
Dissenting Opinion Mr. Chief Bell: Justice is of the age This the Crime and and Criminals, rob citizen man. peace-loving is forgotten Mnrder, of rape and are and this wave bery tidal rampant, widespread ruthless violence and lawlessness* crime, unpunished too which often is due in considerable goes pro-criminal highest to recent decisions of the part in our and No how Courts State matter Country. criminal no matter undoubtedly convicted guilty is, has terrible his crime or how was, many how crimes Coun Courts of our previously highest committed, to years have in recent extended continue (1) and try rights of are (2) so-called and expand criminals, of completely oblivious the rights, security, public. and the Even law-abiding welfare safety if the fact that is Federal worse, possible, highest are retroactive Courts frequently making and State expanded created and crim newly rights their result dangerous with the criminals who inals, a dozen jail for or a score or of years have been more or trials granted practical released new which, are length inability of the of time (because and the effect or is trial their faded witnesses, find recollections), too Judges of release. often forget equivalent one-way not a street—one crimi way Justice street two-way rights where the nal only—Justice people of the law-abiding should be at protection and criminal. those equal least crime which is our wave alarming inundating This large our cities our terrifying people, Nation and * widespread gangs terrorize lawlessness become has So rioting, vandalism, large cities, parts impunity and forcible college campuses buildings and even seizure and and seizure unpunished, churches, go timidi- too often to the due desecration properties, of seized or ty public heads vandalized or officials mollycoddling attitude and the ultra-lenient sentences or Judges. many lower Court by speedier only trials halted curtailed can punishment of and more commensurate swifter juvenile every who aids an- breaks, woman man, breaking, of turmoil, the law. this era other widespread rioting, violence and ruthless crime, daily in our occurrence has become a States Cities, a commensurate sentence means a severe sen- Nation, particular only fit will tence which crime particular powerful but will act criminal, de- “prospective” “repeating” criminals terrent criminals. *18 Majority’s Holding
The pro-criminal Opinion In a to which is so disastrous safety protection Society, and has this Court drastically changed felony- and made a shambles of the doctrine. For murder the second time the has Court repudiated previously felony-murder our well-settled princi- law and the basic reasons and the fundamental ples upon prior felony-murder which this Court’s de- predicated; they cisions were have with- overruled, slightest legal or justification, out moral many re- cent decisions of Court which were rendered at Supreme Pennsylvania a time when Court of was considered to be one of or the two three best Courts in Country. our Majority specifically hold killing that if a oc during attempted perpetration
curs commission or major robbery felony, or during of a other or the at escape tempted any one of the or robbers of the dan gerous none of the cofelons, robbers and none guilty shot was of murder—if cofelons fatal fired holdup policeman victim or a or other law by person or attempting officer, enforcement a pre to robbery (or or the felon’s) robber’s vent escape, or except by anyone one the robbers or a This cofelon. so disastrous to reached which is Society, decision, reasoning, far-fetched and at times by unrealistic, together predecessor, with its which 2d it expands, 137 A. Redime, law-abiding harmful damage the most produce will Supreme inflicted sponte* sua citizens ever Pennsylvania. make their decision in this Majority Worse still, a apply it criminal who case retroactive twenty-three of murder years ago. justly convicted and Its The Prior Law Rationale wisely- been the well-settled For has ages, a com person intentionally law that when established commit conspires with another joins mits or or or another or joins setting felonious sets act, proba the natural and motion chain of circumstances foreseeable result which will reasonably ble harm some bodily death serious person, prod of the crime which his cofelons are criminal act or chain or result aforesaid uct possessed legal If the felon or cofelons circumstances. all who par death felons resulted, malice,** or in felonious act the aforesaid chain ticipated *19 of guilty would be murder. of circumstances of Moyer Commonwealth v. leading In the cases A. v. 2d Byron, 181, Commonwealth 736, person held that every who com- unanimously Court commit a such attempted felony as rob- mitted or was of feloniously'participated therein, or bery, * Supreme required tbe a decision of tbe of Not States.- United Chermansky, ** Commonwealth Legal is defined v. malice Lawrence, 170, 237; Commonwealth 2d 242 A. 430 Pa. Carroll, 525, 768; 412 Pa. A. Commonwealth A. 2d Gooslin, 189 A. 2d 911; 157. 2d murder the first even fatal bullet degree, though the intended fired victim repelling was rob- Justice speaking Chief a unanimous bery. Maxey, said : relevantly wisely 190-191) Court, (pages malice doctrine that when is the mainspring “The actor will be held responsible a criminal act though of his act one any consequence held intended was centuries when it recognized ago Book from quoting that, Blackstone, page IV, ‘if A and section one shoots at but misses him, kills previous this is because feloni B, murder, ous which from, the law one intent, transfers other.’ It (Italics supplied). equally consistent public reason and sound to hold policy that when attempt felon’s to commit or robbery sets burglary motion a chain of events which were should have been within his contemplation when the motion was he should be held initiated, responsible for any death direct and almost inevitable sequence results from the initial criminal act. For any individual forci to defend bly himself or his family or his property from criminal aggression primal human instinct. It is the right duty both individuals and nations to meet criminal aggression with effective counter robber Every measures. or burglar knows when he at to commit tempts his crime that he is dan inviting resistance. robber Any gerous burglar who carries (as most of deadly weapons them do and as these rob did) thereby expects bers reveals that he to meet and . opposition. forcible overcome . . Every robber or bur that a likely knows later act in glar the chain events will be the use inaugurates deadly against force the selected part him on victim. For whatever that natural and results legal use re follow must be held force, responsible* taliating For felon * ours, throughout unless otherwise indicated. Italics *20 Ridley of a station proprietor gas the Shank, Earl July at 11 P.M. on which County, Delaware Township, re- by armed being robbers, attacked 13, 1946, pistol a fire of these robbers with which turn the inevitable as it was proper had at hand was as as Harbor the morn- at Pearl on for the forces American the return the fire of of December ing 7, 1941, of invasion Japanese invaders. The felonious Japanese that Islands on date was law the Hawaiian of the fatali- proximate cause all resultant morals of felonious invasion the Shank Moyer-Byron ties. The proxi- was likewise the July 1946, station gas 13, of resultant fatality.” mate cause A. 596, Almeida, Opinion one (with 2d the Court concurring of dissent) again application one once reiterated rule in a case where felony-murder off-duty pa- in a by gun killed a battle bystander trolman was of every robber was held to be the robbers, by- fatal shot was fired though by murder even Opinion in an Chief by Justice Court, stander. : (pages 604, 605) said Maxey, judge “In the trial said: ‘If that charge [fatal] from fired even removed anyone were anyone, shot that shot was fired in these three participants, members perpetration robbery, jury, degree. in the one that murder first ... If murder; motion chain of set circumstances persons or more persons those death must held ensues, out which death almost any direct, by responsible results such unusual crimi- sequence, inevitable Officer if death So, Ingling . . . nal act. the unlawful consequence of act, acts,
inevitable continuation of the act, defendant, unlawful acting in concert—for the defendant, every or acts, act is an unlawful considered law does one who follows—if act all unlawful the doer *21 killing, of and if tbe result that act is a robbery, be of murder.’ killing members the jury, point for which “The defendant’s thirteenth charge request in effect rejected the trial was judge correctly order con- the court instruct the jury of vict the defendant the death of Officer Ingling, have to find that the fatal shot fired jury would was of robbers. one the three an instruction would by Such have been in defiance of Com- this decision in Court’s monwealth v. and Moyer Commonwealth v. Byron, A. 2d which decision trial judge followed. ‘A dutifully ... man or men in the engaged of commission such a can con- felony robbery victed of murder in first degree if which the bullet causes death fired not by the felon but intended victim in repelling the of felon aggressions or felons. . . . when a felon’s rob- attempt commit or bery sets in motion a burglary chain events or should have were been within contemplation his when the motion was he initiated, should be held re- sponsible death which any by direct and in- almost sequence evitable from results the initial criminal act. For individual any forcibly to defend or himself his or family his property criminal aggression ais human primal instinct. It right is the duty both individuals nations to meet criminal aggres- sion with effective countermeasures. Every robber when burglar attempts knows to commit crime that he is inviting dangerous .’ resistance. . .
“. . . This Court Commonwealth v. Doris, A. held that a conviction of murder the first degree proper, although appeared that, robbery completed after a had been conspira- to effect tors were their trying escape, accomplice of the defendant shot killed the deceased. issue the
“The
defendant
raises
this case
factual
the factual
identical with
issue
raised by the defend-
Commonwealth Moyer
ants
and Byron,
supra;
bullet—one of the robbers
fired the fatal
who
wit,
criminal attack
lawfully
resisting
man who was
de
question presented
legal
robbers? The
precisely
legal
in the
cases was
cided
Moyer-Byron
when men
case;
raised in the instant
question
wit,
fire
return their
at
robbers
feloniously
who are
shot
a shot
person
third
is killed by
and a
self-defense
felonious
are the robbers whose
fired
defenders,
murder?
In the
shooting guilty
action caused
after
discus
thorough
cases
Moyer-Byron
under
decided that
the facts
question
of that
sion
felonious invasion
Moyer-Byron
‘The
that case,
was likewise
July 13, 1946,
station
gas
Shank
fatality.’
of the resultant
(191
*22
cause
proximate
‘Whenever
authority.
not dictum but
That
Pa.)
was
in
of
and
arises
the course
a trial,
fairly
á question
ruling
decision
thereon,
a distinct
court’s
there is
in
mere
no
regarded
thereto can
sense
respect
York
& H. R.R. Co.
Price,
Cent.
v.
New
“dictum”.’
86 C.C.A.
16
1103.
502,
N.S.,
P.
332,
L.R.A.,
159
330,
315 Pa.
245 known their under should be judged by tendency the actual intent accom circumstances, panies prevent them. . . . ‘the object the law is to human re life being endangered taken. . . . the law quires at their peril teachings to know the [men] common just requires as it them know experience, . . . law. the test murder degree danger to life the act under known attending circumstances ”* of the case.’ Pa. 98 2d 374 A. Lowry, 594, held we the driver 733, get-away of the alleged car of first-degree in an unani- murder, mous Opinion 599-600) said : (pages killing “Where occurs in course all robbery, participate who in the car robbery including driver the get-away are of murder equally guilty the first degree even one other than some though the defendant fired fatal shot. Com. 284 Pa. 130 Com. Bobb, 302; A. 99, Com. v. 357 Pa. Moyer Byron, 736; 53 A. 2d 181, Com. v. 358 Pa. A. 2d Com. Hough, 247, 84; v. Al- A. 2d Com. v. meida, 596, 595; Thomas, 2d 112; A. pages Book Blackstone, 193.
“In Com. v. Bobb, A. de- 302, the fendant was indicted and convicted of murder. He was a lookout had to do nothing with the burglary *23 or the murder. The Court ‘If said: defendants “com- bine to commit a or an felony make assault, and, out the common carrying purpose, another is killed, into the the one who enters combination but does commit wrongful act personally is equally responsi- with the ble for the homicide one who directly causes v. 273 Pa. 478. it” : Com. Micuso, “It 474, is not neces- prove sary, however, party actually aided * Opinion. v. in Commonwealth Almeida Italics 246 if he watched offense;
in the commission remained or prevent surprise, in order companions, escape, their to favor order distance at a convenient able to be a situation as or in such if was necessary, of knowledge assistance, to their to come readily confidence to give additional calculated which was aiding contemplation of law his companions, Com. 111 263; v. Pa. 251, Weston abetting”: Com., ” v. Pa. Biddle, 640].’ [200 2d 113 In v. 381 Pa. A. Bolish, 500, Commonwealth sum- Court said : “We thus (page 520) may this 464, of Pennsyl- has the settled marize become law what or malice legal : If commits act person vania from common of events off a chain which, sets death another is a natu- experience mankind, person or foreseeable result, ral reasonably from if death results act from guilty murder, produced. If the naturally origi- the events which act rape, robbery, nal malicious arson, burglary actor original guilty murder kidnapping, degree.” first v. In Commonwealth Pa. Thomas, 117 A. held the Court that when 2d one two robbers from a which they just store had running robbed is both hold-up killed robbers are victim, degree. in the first murder re case, v. Commonwealth Almeida, affirmed supra; Pa., v. Moyer, 357 Commonwealth Common Pa., supra; Lowry, Pa., supra; wealth Commonwealth v. supra; Bolish, Pa., Doris, 287 Atl. Commonwealth v. 313; Cuida, 98; 2d and Commonwealth 19 A. Sterling, Atl. 258. Court quoted at 76, 170 some length of the above-mentioned several cases, perti 642): (page nently said sets in motion defendant
“If
the physical
power
he is liable
its result.
‘Acts
another,
should be
*24
judged by
tendency
their
circum
under the known
accompanies
stances, not
tbe actual intent which
requires
peril
.
them . . the law
at their
to know
[men]
teachings
just
experience,
requires
the
of common
itas
them to know the
.
.
of
the
law . “the test murder is
degree
danger
attending
of
the
life
the act under
‘
’
known
of the case”
circumstances
“He whose act
any way, directly
indirectly,
causes
or
the death of
meaning
kills
another,
within the
of
him,
of the law
felonious homicide. It is a rule
both of reason and
impel
law that whenever one’s will
a
contributes
physical
whether
force,
or
another’s,
a com
own,
proceeding
bined force,
whatever
different
responsible
he is
sources,
as
the same
result,
’
though
produced
his hand,
had
unaided,
it.
.”.
‘There
“justice”
can be no
holding
doubt about
felon
degree
engages
of murder in the first
who
robbery
burglary
thereby
a
inevitably
or
calls
against
into
activity
action defensive
him,
forces
being’:
which forces result in the death of
human
a
»*
(pages 644-645)
The Court further said
“That the
:
any
person
victim,
third
such
would
officer,
attempt
prevent
prevent
robbery
or to
the es-
cape and would shoot
felons,
kill
one
readily
felons
‘as
was
foreseeable’ as the cases where
bystander
unintentionally,
an innocent
is
even
killed,
accomplice,
the defendant’s
or where
victim
robbery
pursuing
where
slain,
a
officer
killing
The
killed.
co-felon is the natural fore-
robbery
result of
initial act.
seeable
proximate
cause
the death. We can
no
see
sound
merely
for distinction
reason
because the one killed
killing
perpetration
It
co-felon. was
‘unquestionably
robbery
contemplated
which was
*
Opinion.
v. Thomas
Italics
certainly
tbe
who most
callously ignored by
defendant,
well
crime
might
intended to commit a
knew
to it’: Commonwealth v.
give rise
*25
Sterling,
Mr. Justice “The Nature the Judicial Cardozo, 66 and wisely they said: “When Process,” pages 67, rules upon are called far [judges] say existing how or must let the wel- are to extended restricted, they be its and its dis- direction society path, fix fare of . cause tance . . law is welfare of final . . .” society §197, IY Blackstone Commentaries, said,
Blackstone, “If such an act 1594: does man, however, page eventually and consequence may probable which the be, no killing although be may murder, such death; is, no himself and by killing primarily stroke be struck ...” intended: in prac- cases actually
All of the aforesaid were of per- when there was a change overruled tical effect at which Court Supreme Pennsylvania, in the sonnel reasoning principles all the and ignored they time Court and changed decisions this prior and the 391 Pa. Redline, 486, Commonwealth by law the most unreal- 2d I believe this was 472. 137 A. blow and the most unwise, damaging most istic, heretofore ever safety Society to the protection of Pennsylvania. Supreme delivered I reasons hereinabove mentioned, all of For dissent. vigorously very a new giving Smith Majority
The decision
post-
kind of appeal
any
any
took
never
trial—Smith
in
appeal—is
until
the present
petition
conviction
Almeida and
unjust
Hough,
unfair
excusably
trial and
for a new
their ap
petitions
repeated
whose
of murder
of sentence
were
judgment
from the
peals
this
and also
Fed
Court,
dismissed
rejected
Ma-
ex rel.
Hough
See
Courts.
eral
roney,
229 A. 2d
ex
411,
913; Commonwealth
rel. Almeida v.
Bundle,
Pa.
187 A. 2d
cert.
460,
266,
den.
It has often been said that “Justice is mean- blind,” ing thereby that Justice absolutely fair to everyone, subject is not outside or any improper influence whatsoever. Justice is case, but certainly blind, *26 ais and different new social and legal blindness; what it terms “Justice” erroneously “gross injustice,” primarily Society Smith’s co- and, secondarily, Almeida and felons, Hough. lje Appellants. Li
Zakian stran d et al.,