OPINION BY MR. JUSTICE BELL, May 22, 1961:
In order to determine whether there was sufficient evidence to establish a robbery within the meaning of the Felony-Murder Rule, it is necessary to consider the statute, the authorities, and the evidence. The Penal Code, Act of June 24, 1939,
In Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861, the Court said (page 208): "`. . . "`It is clearly
If the law were otherwise it would be impossible in many cases where there were no eyewitnesses, to convict a criminal. It is rare that a criminal ever discloses in advance or sends a telegram expressing his criminal intentions.
"The test of the sufficiency of the evidence — irrespective of whether it is direct or circumstantial — is whether accepting as true all the evidence upon which, if believed,
The following is a brief summary of what the jury could justifiably have found from the evidence: Defendant and Patricia K. lived together. He rented her out as a prostitute. Querey, the deceased victim, after his mother's death, came from North Carolina to Pennsylvania to collect her life insurance. He collected the insurance and on his way home engaged Patricia through a cab driver for purposes of intercourse. The price was $50. He paid her the $50 and also bought her some presents. Patricia remained some time and after it was over went back to the Naples Restaurant to meet defendant. She gave defendant $50. He became very angry because his price was $50 an hour and she had stayed three hours. Defendant shouted at her and said "You are going out and see that man with me." He said the man was trying to get something for nothing.
Defendant contends that the above mentioned facts cannot amount to a felony murder because the Commonwealth failed to prove that he "had any preconceived intention to rob" Querey when he went to his room; that the robbery was merely "an afterthought" which was formulated after the beating occurred.
The Commonwealth's evidence to prove both robbery and murder
Defendant's highly technical argument amounts to this: Unless the Commonwealth proves that the intention to commit a robbery was formed before the beginning of the fatal assault, the evidence cannot amount to a murder which was committed in the perpetration of a robbery. In other words, defendant would require a televised stop-watch in every robbery or felony-killing to prove that the felonious intent existed before the attack. It is rare, we repeat, that a criminal telephones or telegraphs his criminal intent and consequently such intent can be properly found by the jury from the facts and circumstances in a particular case. In the instant case the facts and circumstances, particularly defendant's belligerently expressed intent to get the money (to which he said he was entitled) out of Querey, followed by his use of force to obtain it, were amply sufficient to justify a jury in finding the necessary criminal intent beyond a reasonable doubt. There is no authority to support defendant's proposition — indeed there are two authorities, although none are needed, to the contrary.
A similar contention was twice made and rejected by this Court. In Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, defendant was convicted of murder in the first degree (with penalty of death) upon proof that the head of his wife had been severed from her body and encased in concrete in the cellar of defendant's home. Defendant testified that his wife had been taking sleeping pills for 5 years because of sickness and high blood pressure, and that on her birthday he went to a store to purchase a cake for her. When he returned he found her dead on their bedroom floor. Defendant testified that on the floor by her side he
In Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906, defendant signed a confession in which he stated that after his victim had hit him in the chest he knocked him down with his fist and then in a drunken rage picked up a stone and hit him in the head several times with the stone. As the victim lay on the ground, defendant took money from his pockets, but he claimed he never intended to do this until after the victim was lying unconscious or dead. The Court in sustaining a conviction of murder in the first degree with penalty of death, said (page 321): ". . . The defendant's argument that the intention to rob originated subsequent to the assault upon the deceased need not be seriously considered in view of the verdict of the jury. Moreover, even though such were the case, it is immaterial when the design to rob was conceived, if the homicide occurred while defendant was perpetrating or attempting to perpetrate a robbery. Where the killing occurs in the perpetration of any of the crimes specifically named in the statute referred to, the intent to kill is immaterial. Such considerations do not affect the situation
The law which has been in existence for many centuries in England and for ages in our Country, was enacted for the safety and protection of peaceable citizens of each community and we will not permit it to be thwarted or evaded by such a far-fetched and realistically-absurd construction of The Penal Code.
Hart's second contention is that the Court erred in admitting into evidence the transcribed testimony of a tape recording of parts of defendant's confession with the assistant district attorney after his arrest but before trial. Defendant did not know that his confession with the district attorney was being recorded. The rule is accurately stated in Commonwealth v. Bolish, 381 Pa. 500 (page 524), 113 A.2d 464: "In Commonwealth v. Clark, 123 Pa.Super. 277, 187 A. 237, President Judge KELLER wisely said, page 285: `. . . The phonograph, the dictaphone, the talking motion picture machine and similar recording devices, with reproducing apparatus, are now in such common use that the verity of their recording and reproducing sounds, including those made by the human voice in conversation, is well established; and as advances in such matters of scientific research and discovery are made and generally adopted, the courts will be permitted to make use of them by way of presenting evidentiary facts to the jury.'
"We therefore hold that tape recordings are admissible in evidence when they are properly identified and are a true and correct reproduction of the statements made, and when the voices are properly identified."
In the instant case a stenographer transcribed the tape recordings and the Commonwealth in rebuttal of defendant's fabrications offered part of the statements by the testimony of the stenographer. Trial counsel
Defendant's third contention is that he was denied a fair trial because he was denied the effective assistance of counsel. Defendant at first refused counsel but subsequently changed his mind and requested the Court to appoint as his counsel Armin Friedman. Friedman, who was an able, experienced lawyer in the county of trial, was appointed by the Court more than four weeks prior to trial. He saw the defendant every day from that time until trial. Two or three days before trial H. David Rothman, an attorney, sought to become counsel, allegedly at defendant's request. The Court appointed Rothman as an investigator to assist Friedman. Rothman then asked for a continuance, which the Court refused because counsel of defendant's choice had been appointed by the Court over four weeks prior to trial. Rothman contends that Friedman did not interview a number of witnesses whom he should have interviewed — this was disputed — and disagreed with Friedman about several trial tactics. These facts, without more, are neither a sufficient reason for continuance nor for the grant of a new trial. Succeeding or other counsel, especially where defendant has been convicted (or lost his case) can always discover tactical or strategical or other errors which he believes his predecessor (or superior or associate) counsel had committed. If that were sufficient ground for a new trial there would never be an end of litigation. A defendant in a capital case is entitled to assistance of counsel at all stages of the proceedings, including the right to counsel of his choice, if the request is timely made and the accused is
In Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A.2d 904, the Court said (page 607): ". . . the accused in a capital case is entitled to the assistance of counsel. In Pennsylvania this assistance is assured to the indigent by the Act of March 22, 1907, P.L. 31, amended by the Act of April 6, 1949, P.L. 406, 19 PS 784. Pursuant to that act, counsel who tried the instant case beginning on February 6, 1950, were appointed by the court on September 14, 1949. This right to counsel extends to all stages of the proceeding: Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55. It includes the right to counsel of choice if request is timely made: House v. Mayo, 324 U.S. 42, 65 S.Ct. 517. It has never been construed to include a right to counsel sufficiently astute to present every defense which may possibly occur by hindsight to counsel subsequently employed and skillful enough to defend each issue in the manner which seems most effective to such subsequent counsel."
Even more apt is the following quotation from Commonwealth v. Thompson, 367 Pa. 102, 79 A.2d 401 (certiorari denied 342 U.S. 835), (pages 106-107): "The constitutional right of the accused to be represented by counsel gives him the right to choose, at his own cost and expense, any lawyer that he may desire. When, however, he is unable to do so or is destitute or without means to employ counsel of his own choosing, the court will appoint counsel for him whose statutory compensation and personal expenses are payable by the
"There is nothing in the record to show that the defendant's counsel did not properly prepare for trial. The appellant's present counsel assumes that there were important witnesses who might have been called whose evidence would have been material, but that is not established."
An additional point has been raised by defendant, namely, that defendant's rights against self-incrimination were violated by the assistant district attorney.
The gist of this contention is that the assistant district attorney in obtaining a confession of the robbery had lulled defendant into a sense of security by not explaining to him the felony-murder doctrine. Defendant had previously voluntarily confessed the robbery and the assault to the district attorney and he knew he was being charged with robbery and murder. He was offered counsel which, at that time, he refused; he was advised of his rights and was warned that anything he said would be used against him. His confession to the assistant district attorney was the day after his confession to the district attorney. We have examined the record and are convinced that he was not over-reached by the assistant district attorney.
Judgment of sentence affirmed.
Defendant requested a charge to the effect that if the intention to commit a robbery were formed and the actual robbery was indulged in after the fatal assault had been committed, then the killing was not raised to murder in the first degree by the Felony Murder Statute. I think the defendant was entitled to such a charge and I do not think that Commonwealth v. Stelma, 327 Pa. 317, 192 Atl. 906 (1937), is adverse authority.
As Chief Justice JONES said in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958): "In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice. . . . `It is necessary. . . to show that the conduct causing death was done in furtherance of the design to commit the felony.. . .'" Thus, a charge which would require the jury to find the presence of malice at the time of the killing necessary to raise the killing to murder in the first degree should have been afforded the defendant.