*1 Joseph, Appellant. Commonwealth *2 November 1972. Before Argued 27, Jones, C. J., Nix Eagen, O’Brien, Roberts, Pomeroy, and Mander- INO, JJ.
Samuel Mm Dashiell, with Ronald J. Brockington, for appellant. Conley,
Linda Assistant District with her Attorney, Milton M. Stein, Assistant District Richard Attorney, First Assistant District Sprague, Attorney, Arlen District Specter, Attorney, Commonwealth, appellee.
Opinion Mr. Justice O’Brien, May 1973: On at about May 23, 1970, 1:30 p.m., eighty-four- Edith Seal was knocked year-old down and robbed of her while walking 2700 pocketbook, along block of Park North Avenue Philadelphia. As a result of knocked Miss Seal down, sustained a being fractured and complications developed hip which, according led ultimately testimony, Commonwealth’s expert to her death 1970. July 25, at her who Eve
Mrs. Bosa husband, Wilson Accord- North Park the crime. witnessed Avenue, down by to Mrs. Miss Seal knocked ing Wilson, her After black who then took single male, pocketbook. taken and Miss Seal was purse pushed male run an through Mrs. WEson saw ground, single from Park which runs Avenue to Thirteenth alley Street. Mrs. Wilson went to and asked victim help Miss Seal whether she had her with her keys and, to Mrs. Miss Seal “that he according Wilson, replied her took pocketbook”. to Mrs. According Wilson’s nor neither she testimony, Miss Seal had seen more than the assailant involved in single the attack. one
However, Ulysses who Osborne, Eved at 1221 *3 in West Silver the same Street, neighborhood as the 2700 block of North Park testified Avenue, that he saw four leave house at 1225 boys West Silver Street before the shortly purse snatching and he occurred, further testified that, shortly after the he heard crime, someone and saw the shouting same four boys running back into the house. to Mr. According one Osborne, four boys was carrying brown with bag what ap- to be a peared pocketbook sticking out of it when he went back to the running house. Soon Mr. afterward, Osborne one saw of the boys leave the house with the in brown his bag hand, go up toward Twelfth Street, turn in behind a church and garage there and then return empty-handed.
As result Mr. Osborne’s tip, soon police 1225 at West Silver arrived Street. Upon entering they encountered building, appellant, eighteen-year-old Carl who was no Joseph, wearing shirt, was sweating to be profusely, appeared breathing heavily. The then arrested police appellant and three other boys in the house. One of who were the police officers later in found Seal’s recovered Miss pocketbook, directly alley located behind a garage the bushes Silver Street. West opposite statement to following Later appellant gave “Q. works will on own go your Carl police:1 you this incident? us know you concerning tell what I to Norman On 5-23-70 went over Wash Saturday on it am house Colorodo St. was about 7:30 ington’s find make we went out to what we could to some big see walked around and then we went to money. my We I Marshal Diamond St. job Grandfathers at picked up bag Clothes Grandfather then we my walked back Germantown then to Av. we went back crib St. and laid around for Then my Silver awhile. I we went back out left the clothes the crib but at took the me. back bag with We went the Av. this up was about 12:00 a.m. or 1:00 met we p.m. Steve Wil liams off coming Germantown Av. we met hi near Germantown and Av. allWe Norman and Lehigh me, Steve walking Av. up Lehigh when we met Bub this was around 11th and we Lehigh Av. stood and talked a couple minutes. This is when the old lady past us Bubles said he was going snatch her pocket book. Me and Norman said she did not have any money and Bub said hit her before and some got money. We continued walking up Av. and I Lehigh off cut at 12th St. Bubles walked ahead of us following old Norman lady. and Steve followed a little behind him. I went the 1200 up blk Silver and I st could see *4 the through yards Bubles I Lehigh av. saw Norman and Steve and asked them wheres Bubles Norman said he I moving up went to up 13th and Silver St and waited few minutes and then Bub came the through off Park Av. and he alley had the ladies pocketbook presented exactly 1 The statement appears here it as in the record.
ááí pocket bag paper threw the opened and he
I the brown bag bag dropped and kicked it under the in I book the guy pick I ft. and some I about ten saw a car walked got up bag I told him it was I back and it the so went Norman my I house and ran to the then Bub brothers up all into and we went and had come 13th St. Steve apartment up floor to the second the house. We went gave bag and I to Bubles the room the and into ded twenty-two dumped and cent he it. There was $2.00 pocketbook purse. change and I took the in the little anything through I took then it and did not see looked bag placed paper pocketbook it in the and took the garage I across the street. it and threw it behind later the back to the house and few minutes went up. paper Q. kind of and locked us What Police arrived shoping bag bag A. a brown it it. It was had I on it but dont remember what the name name red happened gave Q. I A. ... it was. What $2.22? I back to and don’t know what did with it. . . . Bub, you you you Q. mean did when told Norman What big money. get get A. Our could some intentions was to tape put bag. you Q. in the a car it What did need money drugs. you Q. For for. A. When did decide help get Bub Pocketbook. I A. Whe saw him alley coming through help I decided to him pocketbook letting put papeerbag. Q. him They look Norman and Steve out for Was Bub. A. did say they they just look him outs not folllowed saying anything. you Q. out did it with Did ever you Q. A. the old women before? No. Can see describe A. a little She was taller than this women? Bubles she lady. you Q. and she was a white old Did see pocketbook? Q. A. take No. Bubles What is Bubles address. A. don’t name and real know he about 17. . . . pocketbook you Q. discribe Can that Bubles took lady. squar. old It was Why from the brown and Q. you paperbag you take the brown you did with when *5 I left 1225 Silver St. with Norman Washington? to for or use the car going bag tape something Q. that could to in it. . . get . Is there put anything else can add to A. No. . . .” you this statement?
On the basis of statement and the afore- appellant’s mentioned evidence, appellant by was convicted of first murder and After robbery. aggravated denial his was sentenced post-trial motions, appellant to life for imprisonment murder and to a term of ten to for run twenty years to aggravated consecu- robbery, to the tively sentence for murder.
In this
first
appeal, appellant
that
the evi
argues
dence in this case is insufficient
to link
to
appellant
robbery
resulted Miss Seal’s death. How
if the
ever,
evidence was sufficient
to establish that
appellant was
of a
to rob
part
plan
Miss
Seal,
could be convicted under the well-known
that
principle
if one or more persons
in the
engage
commission of,
or in an
to
attempt
commit,
robbery,
during
perpetration
or
robbery
victim
attempt,
killed
one of
by
all of the
felons,
co-felons who
were parties to the
are
conspiracy
equally guilty
murder. See Commonwealth
Eiland,
The law has traditionally defined a “crime” in terms of an overt act committed with the requisite criminal intent. The principle by which a member of a conspiracy be may held criminally responsible crimes which were actually committed other mem- bers stems from conspiracy the belief that, case of each since co-conspirator, his knowing entry into the conspiracy is proof his own criminal intent, it is fair and perfectly to proper hold him responsible for any crimes committed in furtherance the con- spiracy. Thus, instant if case, appellant entered into a to conspiracy rob Miss Seal, law will hold responsible him for her death which resulted from that robbery.
Appellant argues conspiracy that there no purse. according take Miss appellant, Seal’s Bather, *6 purse simply the theft of the was of one act in- appellant’s acting dividual, on his friend, Bubbles, appellant boys own. While admits that the four had conspired get big money”, appellant’s po- “to some it is exception boys sition that, with the of had Bubbles, only agreed property stealing to commit such as crimes, tapes from significantly automobiles, crimes which are different from the crime which occurred here—the robbery of an old woman—with its concommitant risk bodily or death serious harm to the victim could result.
However, we believe that there was sufficient evi- dence in this case from which a could infer that appellant conspired and his friends had with Bubbles robbery Ulysses commit the of Miss Seal. Osborne boys together shortly testified that he had seen the four robbery, testimony contrary before the was appellant’s statement to the effect that he and Norman just Washingon happened to meet Bubbles Steve Appellant Williams on the street. admitted that he standing conveniently nearby was the scene of the rob- bery, paper bag so that his could be used to conceal purse. the victim’s
Appellant’s statement also indicated that the other boys two though acted as even lookouts, there was no agreement they oral play as to the roles were to in robbery. robbery, Then boys after the the four again running together seen back to the with house, appellant holding purse paper bag, victim’s in his appellant after which time disposing was later seen of purse. From all of this evidence, could reasonably robbery conclude that the of Miss Seal was product among boys. concerted action the four next
Appellant
argues that his statement
should
not have been admitted into evidence. The Common-
wealth’s evidence showed that
the appellant, eighteen
years
a normal
age
mental
made his
status,
statement
after
voluntarily,
being
advised
his
fully
and in the
rights
presence
his mother. Appellant
admits that he was adequately
but contends
warned,
that he told the
that he
investigating detective
could
not afford a
lawyer
wanted one to be
appointed
him.
since the
However,
police witnesses testified that
no such
request
it is
made,
that this issue
apparent
of credibility was
resolved
favor
the Common-
wealth and there is more than
evidence to
ample
sup-
port the court’s conclusion that
the confession
ad-
missible. See Commonwealth v.
Moore,
Pa. 364,
Appellant also argues that the Commonwealth’s evi- *7 dence was insufficient to establish that Edith Seal died aas of result the assault her co- upon by appellant’s conspirator. the However, Commonwealth’s Hr. expert, Segal, testified that a beyond reasonable doubt the fractured she suffered as the of hip result the assault, and the complications which she suffered of as result all of which injury, are complications not unusual for an led to elderly person, acute pneumonia eventually to death. He characterized phenomenon this as a “chain reaction” which had been “set off” by fracture of In hip. doctor’s words: “. . . the if she starting point is hadn’t fractured her none hip of this would have occurred. this doesn’t mean Now, that say she wouldn’t have a natural death. She had she arteriosclerosis, would have had cancer, she would have number the other mentioned in things list But those diagnoses. did not cause her things death. She was around with them walking before she her fractured and most hip, presumably she would have them had walked around with she not fractured her hip.” explained
The doctor that his nse of the words presumably” from his belief that there “most stemmed way predicting nowas when Miss Seal’s other medi- problems cal would have led to her were it not death, complications for the as a of the she suffered result conjecture hip. necessary fractured Such whenever suddenly injuries. person After dies inflicted explained, might as the also “have doctor Miss Seal all, days been run a car” three after “the date over again injury”. reiterated her the doctor Nevertheless, his conclusion that “the cause of death was the fracture hip.” of the
areWe
satisfied that
the evidence was sufficient
support
jury’s
verdict. See Commonwealth
(1972);
Corn, 449 Pa.
Common-
Appellant allegation raises one more He error. argues away possibility the court took of a degree second murder verdict in instructions to the his after the had the courtroom to returned to request additional instructions on the difference be- degree tween first second murder. repeated statutory
The court first definitions degree explaining, first and second as had murder, charge, only done in his initial that “the difference degree between first murder and second murder is the willful intent to kill. If there no is willful intent present except to kill and all of the other are elements *8 kill willful intent to then it of is murder the second degree.” explained felony-murder The court then doctrine and concluded his additional instructions with following you “If statement: believe from the evi- beyond they dence reasonable doubt that an had agreement they Lehigh looking on Avenue, somebody money they and with that until went around
449 of saw this even one them did not like they lady, though it he and said she did not and the any have money I fellow who did the said her and pushing hit last week some this man off at got money, even turned though 12th Street and went to 13th and he took the Silver and it into the pockethook brown that he was put bag and it under car and from carrying put retrieved it a man that took it from under the if believe car, you from the evidence a reasonable doubt beyond that this was all of part parcel they what intended to do, even though defendant not touch did this lady, then he is guilty aggravated even he robbery though never her touched is guilty course murder m,urder under the degree rule. How- felony first you have to ever, believe that the evidence and you have believe it beyond reasonable doubt. If you do not believe that a reasonable beyond doubt can- you not him of convict or robbery murder the first de- gree.” (Emphasis supplied.) at objected
Appellant
trial,
that
argues now,
this
which in effect told the
instruction,
they
must either find
appellant
mur
guilty
first degree
der or acquit him,
removed the
effectively
possibility
a second
murder
degree
verdict from the jury’s consid
eration.
It is settled law that all
to a
co-conspirators
committed
murder
to the
pursuant
commission of a
may be found
felony
guilty
first
murder.
degree
Commonwealth v. Yuknavich,
Pa.
448
295 A.
502,
2d
Commonwealth
(1972) ;
v.
Pa.
Sampson, 445
558,
However, jury they may, need not instruct the that as an act of mercy, degree felony- return a of in verdict second a supra, murder situation. Commonwealth v. Schwarts, required at all 520. that is in is Instead, such cases types that the court define the various of homicide and jury they responsibility tell the that the ultimate have fixing degree guilt. of of Commonwealth v. Gibbs, (1950); 366 Pa. 76 A. 2d 608 Commonwealth 182, (1950). 364 Pa. Foster, 2d 279 288, charge the entire is it When reviewed as is whole, clear that in the initial both instructions and in the following jury’s request, additional instructions, jury charged in murder both the first degrees second and was told that the ultimate choice up Consequently, to them. no error was committed. Judgment of sentence affirmed. by
Dissenting Opinion Mb. Justice Mandebino : exception no dissent. There is in the rule that, jury all elements a crime must trial, be found jury. judge away A exist cannot take from the jury any consideration of the elements the crime. killing being of a Murder is the human with malice. killing If the occurs without thé crime not malice, although may manslaughter. it be murder, The in all murder therefore, cases determine whether must, jury, the defendant acted with malice. The of course, may may that be instructed malice be if the inferred, engaged perpetra- finds that defendant felony. jury, they of a To tell the tion that however, (malice) must find one the elements murder as a jury. is to invade the matter law function of the misreading in this area The confusion arises P. Act of June L. 24, 1939, of the as §701, amend- The Act not 18 P.S. 4701. does define murder ed, but murders are first establishes murders. The Act not does state that all committed Jdllmgs of a perpetration are first felony degree murders, but states all murders committed the perpetra- tion of a are felony first degree murders. The Act pre- that it supposes has been mur- already determined that der been has committed. That question, must however, *10 be determined the the Act jury does not state otherwise.
The jury first must, therefore, determine whether the defendant is guilty murder then determine whether the defendant is of first guilty murder. degree The judge this case charged jury that they bound find murder in the first if degree found they the defendant was guilty took robbery. This from the away a jury consideration of whether element of malice, necessary murder, present.
The only proper charge would be one that instructs the jury that malice is for murder necessary and that from they may malice of a perpetration felony infer or from other any circumstances. If the jury finds malice and also that was perpetrat- finds defendant ing felony, they should find first murder. degree It is not sufficient charge that a jury Joining of a perpetration must be felony first murder. degree must find a murder They first, and then decide the of murder. The in this case charge skips crucial link. The must find an (1) intentional killing with malice (2) that killing was the perpetration and then it felony, may conclude first degree murder. In this first case, necessary link taken as a matter of law and the defendant was thus of a deprived complete jury trial.