Commonwealth v. Waters

Pennsylvania, Appellee, COMMONWEALTH WATERS, Appellant. Gary D. Pennsylvania, Appellant,

COMMONWEALTH Appellee. WATERS, Gary D. Pennsylvania.

Supreme Court 24, 1980. Argued Jan. 15, 1980. July

Decided 10, 1980. Sept. Denied Reargument Defender, Public Smith, E. George Lep- V. Chief Gregory Jr., Waters. for ley, Williamsport, Banks, First Asst. Dist. Atty., Robert F. Com.' NIX, EAGEN, J., O’BRIEN, ROBERTS, Before C. FLAHERTY, JJ. LARSEN

OPINION EAGEN, Justice. Chief from the stemming prosecution

This involves two appeals following D. criminal Waters on several Gary has been filed One episode Lycoming County. appeal Waters, To clarify and the other the Commonwealth. issues, from the record. we detail the background garnered 13, 1976, Paul Allen agreed

On Waters and April commit in the central area. Pennsylvania armed robberies The two returned to their home East joint had recently Berlin, where had lost Vegas they from Las Pennsylvania,1 attempt implement most of their in an Allen’s money scheme for at dice. Allen owned a .22 winning already calibre and the two men a rifle. pistol, purchased They that afternoon. After practiced firing weapons placing car, men and their in the Allen the two families weapons where Williamsport drove to the home of a friend in family. actually 1. This Paul Allen Waters’ was the home of and wife was the sister of Allen’s wife. drive and During off. dropped were members family men consumed both of acquaintances, at homes stops several beverages. alcoholic Williamsport to the then proceeded

Allen and Waters Allen. Allen known to who was Diane Buck apartment of ass and little aget piece “and maybe they go suggested door, in the to break was unable When Allen bit of money.” inside, the men kick. Once it with a karate Waters opened Buck and found Diane they bedroom where to a proceeded a shot between Allen fired in bed nude. Brennan Terry and, next one bed, from for the Buck Diane took couple, beat, shoved her around and hours, pushed, and one-half her. rape unsuccessfully, attempting, while apartment took Brennan and over time, kept guard Waters During Waters left the when and At some point, his cash watch. bedroom and shot entered the room to Allen get cigarette, Later, when all four Brennan with the pistol. in the neck Diane Buck onto bedroom, Allen forced were in the persons and Brennan, bleeding, who was injured the bed with also ordered He injuries. him about his ordered her to ask and Buck to “shake Buck’s stomach Waters to rub Diane took Buck out of the it.” He then it ’round like you enjoy Waters leaving her rape room and continued his efforts Brennan. the room with would him get help he to Brennan whispered

Waters voice that he in a loud saying would to mislead Allen by try and shot his off. He did so to finish Brennan going room, he had told Allen He exited into the air. weapon to leave. Allen went to him Brennan, encouraged killed Diane Buck’s dead. really By Brennan was check whether if both her and Waters to kill account, Allen threatened Allen entered the fact, dead. As not, Brennan was Allen instant- behind. died bedroom, shot him from Waters ly- ambulance, but, Buck to call an

Waters advised Diane sufficiently complete herself not compose when she could He remained at call, police. Waters himself called and, night, later that until the arrived police the apartment 90 concerning evening’s police to the a statement

gave was found in Waters’ pocket, Brennan’s money events. in which in the cell holding was later found his watch evening. Waters was detained that murder of was with the 14,1976, charged Waters On April withdrawn the district Allen, by was later charge but was homicide. killing justifiable concluded this who attorney at- with the time, charged At the same Waters was also Brennan, theft, and conspiracy. murder of burglary, tempted accepted by were charges to these His pleas How- 21, 1976, and sentence was deferred. May court on 29 from the gunshot on ever, May when Brennan died Allen, Waters was rearrested by wound inflicted with the murder of Brennan. charged . 13, 1976, permission Waters requested September On 21j on which May request entered guilty pleas withdraw the by and denied was objected on 20,1976. imposed trial court on Sentence September Waters filed a day. timely these convictions later the same in the Court. appeal Superior filed a motion to 1, 1976, quash Waters On October The court of double jeopardy. murder on the ground 13, 2, November on November 1976. On denied this motion of murder of the 1976, jury Waters was convicted was later for the of Brennan and killing second degree Waters’ in this appeal to life imprisonment. sentenced (No. 392) judgment. Court is from 1978, judg- Court reversed 28, Superior On April guilty pleas May convictions based on Waters’ ments and to the trial court with 21, 1976 and remanded the record withdrawal of the guilty pleas;2 directions to permit Waters followed this mandate. subsequently trial court motion quash attempt-murder then filed a theft, on the Brennan, conspiracy grounds burglary, of Commonwealth v. double and a violation jeopardy vacated 233, (Campana I), 452 Pa. Campana, petition for allowance of 2. This denied the Commonwealth’s Court appeal on October

91 on (1973); reinstated 73, L.Ed.2d 94 S.Ct. U.S. denied, (Campana II), cert. 622, 314 A.2d remand 455 Pa. On (1974). L.Ed.2d 1139 417 94 S.Ct. U.S. quash the motion to 14, 1979, court rejected March the trial the Waters, did quash but reasons asserted the attempt- charge ruling sponte sua attempt-murder The Com the murder offense. with merged murder offense challenging in Court Superior filed an appeal monwealth attempt-murder of the order quashing the correctness here for that appeal The certified Court charge. Superior 207). (No. disposition 392) (No. Appeal

Waters’ be twice First, placed his to right Waters claims had his for murder after he in violated trial jeopardy attempt- to criminal charged plead guilty been with and theft, citing Campana.3 murder, conspiracy, burglary, to our in Campana pursuant We the rule adopted joinder courts, mat not as a Pennsylvania over supervisory powers “a rule requiring ter of law. We espoused constitutional known all proceeding, to in a prosecutor bring, single from a criminal ‘single arising a defendant charges against ” 253, I, Pa. at 304 A.2d at 441. 452 episode.’ supra Campana were guilty pleas time Waters’ At the [Footnote omitted.] court, 21, 1976, Brennan had not May the trial accepted by Therefore, of murder was not known died. the offense yet time, to district at that and the Commonwealth attorney charge murder prosecuted could not instituted and have Washington, in first v. proceeding. Commonwealth 474, Pa. (1978). A.2d 3 motion withdraw his that, had his to implies4

Waters imposi- trial court to prior pleas granted by been guilty resulting from failure to file question of Waters’ 3. There is no waiver quash denying appeal his motion to from the trial court’s order prior our charge was denied to the murder because this motion Bolden, 472 A.2d 90 Pa. decision Commonwealth Potter, (1977), on See or November Commonwealth 918, 920, (1978). n. 3 Pa. 256 n. 386 A.2d say argument clarity to the least. 4. The lacks convictions, tion the district attorney of sentence on these which he had plead could have to brought guilty wherein he was with mur- charged the same proceeding der. devoid of The issue reasoning validity. presented

Such could,have brought is whether the murder been when Waters the other Brennan plead charges. Since Hence, alive, was then still the answer is no. there clearly was no violation of court denied Campana, correctly the motion to on this quash ground. also that the failure of the implies

Waters withdraw his join petition guilty pleas and/or created a bar to on those convictions oppose sentencing prosecution for murder under Campana principles double because death had occurred when his jeopardy peti- tion to withdraw denied and when he was sentenced. The is without merit. argument victim context,

In a where the died Campana subsequent to trial but to motions and prior disposition post-verdict offenses, on lesser we indicated that sentencing expressly the failure to and indicated that oppose sentencing impliedly the failure created no join to motions bar to post-verdict a Hence, for murder. subsequent prosecution Campana- based has argument rejected.5 been already as the is argument

Insofar based on principles double The reasoning applies. Supreme the same jeopardy, States, Court United in Jeffers United States (1977) U.S. S.Ct. 53 L.Ed.2d 168 (plurality cited), but see opinion, clearly cases therein indicated that a prior on a lesser offense does not bar prosecution prosecution on a where the offense is not greater greater offense or where the facts to the were completed necessary greater not discovered due before the despite diligence prosecution Any join post-verdict distinction motions between the failure join petition pleas and the failure to withdraw would a create an solely unwarranted based distinction the two situations on between plead an accused’s choice be tried or whether to to the of whether to charges. initial is the same as The Court’s reasoning offense. on lesser Washington, supra, us that used in Common- not far as that set forth does as although go it i. does deal with the e. it not Washington, supra, wealth v. sentencing or after the motions disposition post-verdict But we know of or discovered. offense is greater completed of Commonwealth v. reasoning no reason not to apply based on double jeopardy Washington, supra, arguments so.6 doing reasons justifying numerous principles out, First, as Commonwealth v. pointed Washington, States, as are in accord supra, and Jeffers v. United supra, in Jeffers v. nothing United reasoning to their initial on States, prosecution that an initial lesser suggests supra, a bar a creating without charges begins subsequent which somehow created a on a should greater prosecution to establish bar as it facts necessary is because pursued or discovered completed during offense are greater Second, greater even if the prosecution. course of initial discovered being during crime becoming complete would warrant a course of an initial trial on lesser to with petition mistrial prosecutions, to avoid successive motions, draw, sentencing do constitute post-verdict post-verdict A to withdraw and prosecution. petition com already motions a review of the propriety are and, imposition is prosecution; sentencing merely pleted Hence, obtained. already for a conviction punishment Jeffers v. permissible, since the initial United prosecution States, not prose do constitute and the latter events supra, cutions, is no multiple question presented. prosecution

Hence, of the of double principles there was no violation the motion to correctly denied jeopardy, quash and the court on this ground.

In a new trial is that neces position support alia, that the court erred Waters inter trial sary, complains, underlying 6. While Commonwealth the relevant considerations may Campana, jeopardy in supra, principles differ and of double context, perceive instantly which war- another we no consideration approach resolving presented. issue rants a different jury. instruction to the a certain requested refusing the court to its charge, during Waters requested Specifically, that the law of Common- felony-murder, instructions on the “the conduct the death causing wealth was to show required to commit the design felony.” was done in furtherance of the it would to so and indicated charge The court refused A careful study charge instructions. give appropriate court, in and specific gener both its discloses entirety Waters could be terms, that, before found al told the jury in connection with Brennan’s kill guilty felony-murder convinced reasonable beyond it would have to be ing, death; that this Allen caused Brennan’s doubt that an act of intentional, negligent; reckless or knowing, act of Allen was and, while Waters was an accom that Allen’s act occurred or to commit attempt robbery, in the commission of plice that the court did complaint or Waters’ rape, burglary. caused Brennan’s death not that Allen’s act which instruct We are in furtherance of felony.7 had to have been done cover the point constrained to that the did not agree is a correct state that the instruction requested requested; consti law; and, to so charge ment of the that failure tutes reversible error.8 Code, the new Pa.C.

We have indicated that Crimes law with regard to prior 101 et has modified seq., S.A. § little, if at all. a felony-murder for accomplice liability Allen, (1977) Pa. O’Brien, J. Nix, C. joined by Eagen, J. (plurality opinion, theory supported arguing, In would have so Waters claims this shooting in furtherance of act of Brennan was not done that Allen’s that, hence, accomplice felony which he was an felonies to felony-murder. he error, assignment of we need not reach the 8. Because we sustain this Waters, namely: (1) rejec- additional claims of error asserted prior indicating Allen’s at trial tion of certain defense evidence violence; and, (2) ruling propensity aggression of the trial provisions mandatory court life sentence Crimes Code, seq., are constitutional. 18 Pa.C.S.A. 101 et §

95 Roberts, law, the J.; J.).9 prior Under concurring opinion, for a homi slayer, than of other persons, responsibility of a felony required cide committed in the perpetration and the others slayer of a conspiratorial design proof and of an act by slayer underlying felony to commit the See, of the felony.10 death which was in furtherance causing Allen, v. Commonwealth v. Commonwealth supra; e. g., v. Commonwealth Banks, (1973); 576 401, 454 Pa. 311 A.2d Williams, Commonwealth v. 85, (1971); 277 781 443 Pa. A.2d Redline, Cf. Common 486, (1958). 472 391 Pa. 137 A.2d Schwartz, 515, 285 wealth v. (1971). 445 Pa. A.2d 154 Waters was Conceding charge requested the point instructions, the Common- covered the court’s jury not be in further- wealth of the need argues slayer the act occurred while the ance of the have only but need felony, in a i.e. need felony, only and others were slayer engaged or commission of a have occurred during perpetration cites In the Commonwealth of its felony. support position, is the language Typical found in of our decisions. many Allen, 173, supra, 9. As we 475 Pa. at said Commonwealth v. 1339, “merely distinguishes between A.2d at 18 Pa.C.S.A. § degrees Hence, attempt of murder to define murder itself.” but does not felony-murder classifying as the new murder Crimes Code existing degree merely “incorporate[d] of the second law of murder.” Id. otherwise, robbery accomplice would be Were it to a felony-murder during robbery if one his cofelons the course of the street, window, passerby and shot and looked out a saw a down the though passerby him no connection to the killed even had accomplice robbery Obviously, though an knows whatsoever. even robbery may during be killed or should know those connected to a Legg, dangerous felony, the course of a see Commonwealth day), (1980) (J. filed this he should not be 417 A.2d 1152 Pa. Compare at least foresee. held accountable for that which he cannot accomplice liability requires 306 which under 18 Pa.C.S.A. § promote of the with intent to or facilitate the commission offense policy limiting charged thereby which one establishes liability. such criminal Also, policies purposes for the for a discussion of the of and Morris, limitations, The Felon’s see N. limitation in the text and other Others, Responsibility 69-74 Lethal Acts 105 U. of Pa. for the Myers, (1956), Pa. and see ex rel. Smith policy limiting (1970), clearly which indicates application felony-murder rule. Yuknavich, v. 502, from Commonwealth 448 Pa. following 507, (1972): 295 A.2d 293 where a occurs in the commission of

“Clearly, killing a all who are of felony, therein participate equally murder.” Yuknavich,

But this in Commonwealth v. as language supra, cases, well as similar in must be viewed in other language context, context of what discussed. In being was then Yuknavich, in Commonwealth v. particular language in supra, and other cases stated a merely general principle then under where it repudiate specific argument discussion was to limit with the unnecessary general principle qualification that, on one who impose liability order to was not the the act of the death slayer, slayer causing actual short, must have been done in furtherance of the In felony. in most instances where the whether the language appears, act the death had to be done in furtherance of the causing Indeed, was not at issue. in Commonwealth v. Yuk- felony navich, stated the in a supra, general principle .Court discussion which that malice should no rejected argument be longer quoted and continued after imputed language to point out that which established the guilt the evidence Yuknavich, who was not slayer, felony-murder showed the act death causing occurred furtherance of the Hence, while cases contain robbery plan. may language which at first blush Commonwealth’s supports position, was never meant to with the language dispense require- ment that the act be furtherance of the slayer’s felony.11

In position, further of its the Commonwealth cites support Stelma, decisions of this such as Court Commonwealth v. 327 Hart, Pa. (1906), A. 906 403 Pa. 652, 170 (1961), Slavik, A.2d 850 and Commonwealth v. Pa. 354, that, 261 A.2d 583 (1970), wherein we held if a homicide occurs in the of or an perpetration attempt opinions language clearly 11. There are of this in which the Court See, supports position. g. e. Commonwealth v. the Commonwealth’s Melton, But, cases, (1962). 406 Pa. in most language qualified qualification could have been if such was needed dispose upon of the issue which we now focus. felonies, a enumerated statutorily other commit a robbery be sustained regardless will of felony-murder conviction rob conceived design the intent or common when with a this be reconciled how can question: then asks the be in furtherance the death must that the act ruling causing words, it be said that the how can In other felony? must be in further- the death which causes act the slayer common to commit design if the intent or ance the felony after this act conceived until need not be felony committed? Pa. 417 A.2d Legg,

In Commonwealth we held that henceforth 167 filed this (1980) (J. day), be formulated when felony the intent to commit must rule felony-murder in to the act of occurs order killing apply Common cases relied on the from the departed which our decision reasoning compelled wealth. The same the conclusion v. dictates Legg, supra, in Commonwealth felony to commit the design underlying that the common to occurs in order of slaying must exist when the act But, felony-murder. for liability an accomplice’s establish the common when intent, design with existence of a as the from the circumstances be inferred may occurred slaying after shortly committed slayer accomplice acts the from the common saying but is far different the slaying, be conceived underlying felony may the design to commit Hence, relied on by the death.12 the cases causing after act to logical no obstacle longer present the Commonwealth our here. ruling be a new trial. granted Waters must

Accordingly, (No. 207) Appeal Commonwealth’s is that portion from appeal The Commonwealth’s Waters’ motion which granted the trial court’s order support argues no existed to a claim evidence 12. The Commonwealth felony, charge was the and no that the was not furtherance of act requirement disagree. necessary. a neces- We must The therefore finding guilt, have sary and the facts could to establish Waters’ independent completely supported act was that Allen’s inference felony. wholly felony the it was unconnected 98 trial

quash The court charge attempt-murder.13 to quash the motion granted attempt-murder charge on that it with merged basis Waters’ conviction for murder. The court did so even Waters “failed to though specifically that his for of these allege prosecution charges should any be barred by the of merger.” doctrine

haveWe examined the motion to it did quash agree it issue, raise rather raised a claim under any merger We have held that courts not raise our should Campana.14 sua sponte. Branham, issues Pa. Ass’n, 359 A.2d 766 Butler D. v. Ed. (1976); Area Butler Sch. Trust, 481 Pa. In re (1978); A.2d Duncan Pa. (1978); A.2d 1051 461 Pa. Wiegand Wiegand, Hence, trial (1975). court erred sua sponte raising merger issue and its order granting motion quash the cannot be attempt-murder supported by merger doctrine.

Further, the order be supported by cannot Cam which trial pana, court, to the for the same presented we reasons detailed. not bar previously Campana does prosecution an offense which subsequent is unknown to the Commonwealth when arising from same because, transaction are such brought under circumstances prosecute Commonwealth is unknown powerless offense. Washington, Commonwealth v. supra. Instantly, the Commonwealth was powerless bring to the equally of charges theft, and attempt-murder, burglary, conspiracy when Waters was tried for because murder he was already convicted of While the charges. those Commonwealth have in to might joined Waters’ withdraw his petition pleas, appeal portion 13. Waters did that the not of order which denied his quash charges theft, burglary, conspiracy. motion to the of and Indeed, he has a filed letter with this Court in of a lieu brief indicating opinion disposing the trial of reliance on court’s the mo- quash. Accordingly, propriety having tion to denied the charges attempt-murder as to the other motion than is before us. not Specifically, alleged being placed 14. the motion Waters was twice in jeopardy because he had been tried for convicted murder “under the same and “for facts” the same criminal action.” prior death and to Brennan’s subsequent was which filed not murder, compelled would have doing so Waters’ trial for could have charges so that court to the motion grant Furthermore, as prosecution. in the murder brought been su- Washington, in Commonwealth explained, previously need Commonwealth that the implicitly recognized we pra, oppose of an accused or in motions not join post-verdict on which he bring him order to in sentencing previ- for a prosecution subsequent in a has been convicted A episode. from the same arising crime unknown ously required instantly fortiori, the Commonwealth ruling his a pleas. Such to withdraw in Waters’ motion join two between the distinction create an unwarranted would whether to choice of on an accused’s solely situations based More- charges. the initial or whether to plead be tried is supra, imminently over, Washington, would ruling a reasoning contrary sound its motions, in post-verdict compel join the Commonwealth appeal by or an pleas, a plea in motions to withdraw circumstance, if namely on fortuitous wholly accused based a known. becomes or other crime and when a victim dies court quashing of the trial the order Accordingly, reversed. must be attempt-murder reversed, is In of sentence judgment No. is new trial granted. the motion to quash

In the order granting No. reversed.15

FLAHERTY, concurring dissenting opinion. J., filed a J., dissenting opinion. LARSEN, filed Superior course, today on the Court’s have no effect 15. Of our orders petition reversing denied Water’s court’s order which order trial petition pleas since we Commonwealth’s to withdraw denied order Superior its appeal Court entered after allowance Hence, any charges April Waters on no convictions of arising episode exist. criminal now from this FLAHERTY, Justice, concurring dissenting. While I am in with accord order of a new majority’s trial case, I cannot with the conclusion agree that the jury instruction on murder rule should felony include the charge that a defendant be found of murder may the second if degree only the homicide committed by accomplice during the perpetration was “in felony furtherance of” the I cannot felony. agree that inserting this requirement into the murder felony charge adequately advances the stated of this Commonwealth with policy re- to murder gard felony Whether the liability. actions are in “furtherance” of the underlying felony clut- unnecessarily ters the issue.

I am of the that the should be opinion jury charged effect that so as the long energy initiating felonious undertaking continues to the felonious pervade atmosphere created co-felons, then, by result any engendered that felonious is within the energy purview the felony murder doctrine and all who therein are participate equally guilty murder.

As Yuknavich, stated in Commonwealth 502, 448 Pa. (1972): A.2d The nature of the in this case felony robbery] [armed such that it should be obvious to about to anyone embark on such a venture that the lives of the victims may be sacrificed in the end. A accomplishing reasonable man can be with the properly charged that knowledge natural and probable consequences such an act many well result in death or grievous bodily injury those involved.

Keeping mind, this view in one can see that clearly requirement imposed serves majority only create an unwarranted in the technicality law.

A view Yuknavich, similar expressed supra, was set forth in Commonwealth v. 436 Pa. Batley, 391-392, A.2d (1970): it is clear beyond transpired, all that considers When one design plan, that, common doubt reasonable any armed, out on the set all companions, with his Batley, in so rape; robbery commit March 28th to evening occur killing might that a risk assumed doing, Batley companions. or more acts of one through the risk of the orbit within the was killing Frick’s himself, made and he committed Batley to which venture venture until from the to withdraw no effort whatsoever (Emphasis supplied). place. had taken killing after has venture that until the this language is clear from It in the chain of events cut-off been a and there has ceased committing underlying goal the initial attributable to are responsible the scheme entered all who felony, parties to decide whether the jury It is for for the consequences. energy that initial felonious has a cessation of there been I accomplice(s) of any terminating liability thereby so them. would dissenting.

LARSEN, Justice, refusing erred that the trial court The holds majority must prove beyond that the Commonwealth jury instruct the death was done causing doubt the act reasonable that In felony.” my commit the design “in furtherance refusing request- trial court was correct opinion, ed instruction. is defined “felony-murder”, degree,

Murder of the second while “committed 2502(b) a homicide as Pa.C.S.A. § accomplice principal as engaged defendant Nowhere supplied).” (emphasis felony of a perpetration of the design “in furtherance are words in this statute in en- legislating majority and the felony”, commit the meaning plain into the requirement grafting statutory language. at of sentence judgment I affirm would

Consequently, No. 392.

Case Details

Case Name: Commonwealth v. Waters

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 15, 1980

Citation: 418 A.2d 312

Docket Number: 207; 892

Court Abbreviation: Pa.