*1 disagree assumption. with that in court fre- Appearances or, at quently very least, consume complete day of a Fifteen is major part day. per dollars much less day cases, than the normal of a police officer. earnings many the need to time an spend is not off-duty aspect court which duty desirable as indicated majority. No has control of policeman whether his arrests are valid, whether he needed court. The district attorney’s office has matter, control over complete and there is no for concluding police basis officers make generally arrests in the will unnecessary hope they earn meager a full when are not giving up usually day they $15.00 scheduled to work. I otherwise dissent.
Argued 4,May Decided Dec.
Philip Freedman, D. Defender, Asst. Public Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. H. Atty., Reid Heingarten, for Harrisburg, appellee. EAGEN,
Before O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION NIX, Justice.
On November a a a and woman robbed man tavern known as Louie’s Dream House located Harris- The the man burg. pistol woman armed with a and had a the shotgun. During the course of the robbery, sawed-off in the the victim
male intruder shot chest patron The then the cash and fled instantly. pair emptied register that from the tavern. conceded she was Appellant trial, and after was found robbery female participant This of the first is degree robbery. of murder guilty conviction; no has appeal direct the murder appeal from been taken from the conviction.1 robbery have whether could appellant properly issue is single victim, of the been held for criminally responsible Proctor, it admitted that did appellant Ms. Vivian where not fire the which It is argued shot caused death. Code, 6,1972, the 1972 Dec. P.L. No. under Crimes 1 et 101 et one cannot be held seq., seq., Pa.C.S.A. § homicide, (and for a criminal therefore guilty Section cannot murder, 2502) also be held accountable for Section where that does not cause the death. person actually short, the view that appellant’s argument upon premised the 1972 Crimes Code eliminated vicarious responsibility criminal and for the reasons set homicides. We disagree forth judgment below affirm the of sentence. an assault on frames her
Appellant argument her brief rule and devotes a deal of felony-murder great to an that rule. While we applaud exhaustive history fails to scholarship regard regrettably provide illumination the issue raised in this upon actually she has appeal. has failed to between Appellant distinguish common law which concept provides felony-murder, malice, basis for for accom and the implying requirements plice in criminal law. As we noted in Common liability *4 wealth Redline, 486, 495, 472, (1958), v. 391 Pa. 137 476 A.2d “In a at all adjudging it is to be remembered felony-murder, times that the for a thing which is to a felon imputed incidental to his is malice and not the act of killing.” felony This doctrine be a death occurs may applicable whenever the a of or an to during perpetration attempt perpetrate Appellate 1. Jurisdiction is vested in under the Court this Court 673, 223, 1970, 31, 1970, July Jurisdiction Act P.L. No. art. of Act of II, 202(1); 1976-77). 211.202(1) (Supp. 17 P.S. §
169 the felony, whether not accused inflicted the actually Restated, mortal wound. the was a felony-murder concept at judgment our courts common law that the willingness to in conduct to a participate exhibited amounting felony the recklessness of callous consequences, the disregard the hardness of heart a which evidenced malicious state of mind.2 This to the actual reasoning applicable slayer as well as to those who in the with him.3 participated felony provided constructively inferring 2. Since rule a this has basis for killing, malice has been an even case of accidental or unintentional it subjected to harsh ex some criticism. Commonwealth rel. Myers, (1970). Smith v. 438 Pa. 261 A.2d 550 criticism is impressive underlying felony more where the is one which does not However, underlying constitute serious threat to life. where the robbery felony modify has in Court been adamant its refusal to Yuknavich, the doctrine. Commonwealth v. 448 Pa. 295 A.2d Yuknavich, (1972). explained 290 ingness In we reason the for our unwill- principle during alter to the where the death occurred the robbery attempted robbery course of a as follows: felony nature of “The the in is such this case that it should be anyone to obvious to about embark on such venture that the lives may accomplishing of the victims be sacrificed in the end. A properly charged knowledge reasonable man can be with the that well probable consequences may the natural and of such an act grievous bodily result in death or harm to those involved. It is not willfully engages plan to unrealistic ascribe to one who in a to robbery, disposition, commit armed a wickedness of hardness of heart, cruelty, consequences, regardless recklessness of or a mind duty. Thus, dealing social when with the of armed robbery merely saying we are that it is the same that is malice required Id., for common Pa. law murder.” at 295 A.2d at Yuknavich, explained we between difference the common principle felony-murder statutory concept law and the as follows: First, Pennsylvania “The rule in involves distinct two areas. statutory imputes necessary relevant law the malice for first de- gree person a felon who causes the of another during perpetration arson, robbery, rape, burglary, or kid- However, napping. gorizes statutory merely since this classification cate- degrees, murder into two it is to the common law that one must look for the definition of As murder. enunciated Drum, (1868), landmark case of Commonwealth Pa. distinguishing aforethought.’ ‘[t]he criterion murder malice basis, With felony-murder this ‘criterion’ the doctrine of firmly applied became imbedded the common law. As Penn- sylvania, felony-murder imputing common law a‘is means of rule, may where expressly. malice malice not exist Under this necessary one, murder, killing, to make even an accidental *5 170 no in
Appellant, good faith, doubt has mislabelled the being issue as that of dispositive causation. While the of the application murder doctrine felony often presents novel complex causation, and of see questions Common Redline, wealth v. a supra, such not in question present is the instant case. In the Redline of case the type causation arises, problem because co-felon neither committed the le act, thal the act although lethal arose out of the commission of the the case the underlying bar, In at felony.4 appellant’s in clearly wound, the inflicted the mortal companion robbery so it that-the issue controlling is to as to important recognize constructively perpetra- inferred the malice incident to the from felony.’ Myers, initial Smith tion of the ex rel. v. Commonwealth 218, 224-25, 550, Therefore, (1970). 438 Pa. 261 A.2d 553 analyzing perpetration attempt a homicide committed the of or perpetrate basic of ‘the determination the fact of according law, to be to the murder is made rules of the common malice, and, including felony-murder theory imputed upon the guilt, finding degree automatically the statute raises the murder alia, degree happened, if to first inter to have been committed in arson, perpetration robbery, rape, burglary kidnapping.’ Redline, 486, 495, 472, Commonwealth v. Pa. A.2d 391 137 476 (1958) (citation omitted).” Id., 506-07, 448 Pa. at at 295 A.3d statutory felony-murder, In both common law and our concern is imputing requisite
with
malice and not with a determination of
relationship
the causal
between the conduct
death.
and the
causation,
considering
rejected
question
In
this Court
theory
being
upon
tort “but for”
predicate
too remote a basis
which to
Redline,
responsibility.
supra.
criminal
Commonwealth v.
Redline,
repudiated
reasoning
In
as,
we
v.
Commonwealth Thom-
Almeida,
(1955)
382
117
Pa.
A.2d 204
Commonwealth v.
(1949).
362
accomplice
confederate or
one
acting
furtherance
of the felonious undertaking.”
Redline,
Commonwealth v.
supra
496,
391 Pa.
at
See Commonwealth v. Sampson,
558,
445 Pa.
(1941); Commonwealth v. Kelly,
280,
333 Pa.
It is conceded virtually by that appellant under prior law she would be held criminally responsible the death of the victim. But appellant urges that the 1972 Code changes aforementioned principles law. prior We do not agree.
In resolving this question under the 1972 we Code first must consider Section 306 which sets forth those circum- stances when an accused will be held accountable for the actions of another. Since murder is an offense which re- quires a particular result, i.e., the death, as element, an subsection (d) of that section is applicable. That subsection provides:
“(d) Culpability of accomplice. When causing partic- ular result is an element of an offense, an accomplice the conduct such result causing is an in the accomplice commission of that offense, if he acts with the kind of if culpability, any, with respect to that result sufficient for the commission of the offense.” (emphasis added).
To ascertain the “kind of culpability” required by murder of the first degree we must look to Section 2502(a) which defines that offense. Section 2502(a) provides: homicide first A criminal
“(a) degree. Murder of the first when it is commit- degree constitutes murder of the wait, any or by or by poison, by lying ted means willful, deliberate, killing. and premeditated kind of other degree of the first A criminal homicide murder constitutes is an accomplice if the actor is or engaged commit, or after of, flight an attempt commission or or rape, to commit robbery, committing, attempting force, threat of intercourse force or by deviate sexual arson, added). (emphasis burglary, kidnapping.” it be 2502(a) (b)6 we read together, When Section the same comes followed Legislature apparent of the drafting previous as that used in the pattern Code, 24, 1939, 701 of the 1939 June section found at Section 872, 701, First, P.L. 2502 merely P.S. Section § not but does between the of murder7 distinguishes degrees Further, itself. first mur degree to define murder attempt The first type der is divided into two basic categories. it is murder of the first constituting degree where killing willful, type deliberate and second premeditated. where the which constitutes first murder is degree the enumerated the course of one of during results felonies. Here followed is the same again pattern being that in former Section 701 with the difference only the addition of the enumerated of deviate sexual intercourse force. This virtual of the former adoption of a Section the clearest indication provides possible intent to law of murder.8 legislative incorporate existing *8 “(b) degree. All kinds of murder Murder of the second other degree. second shall be of the second Murder of the murder degree felony degree.” is a of the first provide subsequently 7. This section has amended to three been 4, 25, 213, 46, degrees No. 18 § of murder. March P.L. section, (Supp. 1977-78). a Pa.C.S.A. Under this amended § occurring during as murder of the is described degree. second of Jarvis observes: his discussion Section Moreover, there is no legislative history commentary indicating to any intention our modify existing concepts of accomplice liability felony-murders. The of abolition the of application the rule felony-murder to co-felons who do not, fact, cause the death would have constituted startling departure from established law and Pennsylvania is not the of type change that would be to be expected made without comment. bases her view the
Appellant fact primarily upon that the Code introduces the discussion of murder by first the generic crime of criminal homicide. See defining 2501(a).9 Section Since Section 2501 follows 210.1 Section of the Model Penal Code Official (Proposed 1962), Draft is that argued that fact should be construed as a determination our Legislature to follow the decision of the drafters of the Model Code to restrict felony-murder to the actual slayer.10 weakness of argument is that although previous “This section is in accordance with the murder statute However, (18 4701). found at language 701 of the Penal P.S. Code the simplified.” has been Jarvis, Pennsylvania Law, Crimes Code and Criminal Law and Com- mentary, 1974. 2501(a) provides: 9. Section “(a) guilty person Offense A of defined. criminal homicide if intentionally, knowingly, recklessly negligently he death causes the being.” another human defining 10. The Comment to the Tentative Draft of the section murder, see, p. Tentative Draft No. indicates that drafters felony-murder intended the establishing be doctrine to restricted as basis for criminality presumption to a homicide rebuttable participating recklessness from fact actor that the in an inherently is, dangerous-to-life felony. however, expression There no limiting of felony-murder reading responsibility an intention in that discussion of criminal however, slayer. concede, to the do actual We that a might support of Article 210 in toto the conclusion well the 210.1 definition of criminal homicide be the intended to sole mandatory construing and subsequent types conclusion, definition that obtain when must Accepting of homicide set forth thereafter. such a reasoning only there would be a basis for the one actually criminally responsible any who type caused could be However, purposes of criminal homicide. our we need not here decide whether the drafters of Model Code intended to limit liability vicarious in this area it is since our decision that our Legislature regard did not intend to follow the Model Code with *9 the Legislature did adopt Model Code’s definition criminal homicide they did not to continue follow this pat- tern in defining the offenses of murder. To the contrary, indicated, saw fit Legislature follow to Penal Code We are approach. that satisfied there was therefore no intent to the then law change existing case on the subject.
Thus, Yuknavich, as we indicated in where the statu law does not define tory itself, murder we must look to our case law for purpose. As has been stated the cases are which legion provide that a in participant such as robbery, with the appellant, “acts kind of which is neces culpability” to hold her sary in a death caused responsible aby co-de fendant acting furtherance of the conspiratorial scheme.
Judgment of sentence is affirmed.
JONES, J., former C. did not participate in the decision of this case. MANDERINO, JJ.,
POMEROY and concurred re- in the sult.
ROBERTS, J., filed a concurring opinion.
ROBERTS, Justice, concurring.
I agree with the that the majority Crimes Code1 does not prohibit finding defendant guilty felony-murder when the fatal blow was delivered aby believe, co-felon. I do not however, changes made the Crimes Code impose no limits on the scope the felony-murder doctrine.
Under Code, the Crimes a killing cannot constitute murder unless it is a criminal homicide:
“A criminal homicide constitutes first de- gree murder of the second degree] if the actor is [now engaged in or is an accomplice of, commission or an to attempt commit, or flight after committing, or attempt- the law existing of murder rather but elected affirm law this subject. Commonwealth on that 1. 18 seq. (1973). Pa.C.S.A. 101 et §§
ing to commit robbery, deviate sexual rape, intercourse force, arson, *10 force threat of burglary, kidnap- ping.”
18 Pa. (1973) (emphasis added). C.S.A. § Criminal turn homicide in defined as killing which defend- ant “intentionally, knowingly, recklessly or negligently caus- es the death another human Id. being.” 2501(a). As § clear, section 302 the Crimes Code2 makes a defendant cannot be of a guilty criminal homicide he unless either intends or knows that will result, death isor reckless or negligent about criminally possibility that death will Thus, result. conviction on a felony-murder that a defendant must at be theory requires least negligent as to the will possibility result. however,
In fact, requirement modifies prior law little, all. if at Properly interpreted, the requirements the underlying be inherently dangerous human life, that the killing be in furtherance of the underlying of causation, serve felony, should to prevent criminal homicide convictions for non-negligent For exam- killings. ple, is clear this case that been at appellant has least negligent about the criminally possibility that robbery would result the loss of human life. I Accordingly, concur in the result.
379 A.2d Pennsylvania, Appellee, COMMONWEALTH of DEWS, Appellant. William Supreme of Pennsylvania. Court
Submitted March 1977. Dec. Decided 1977. Id.