Appeal, No. 140, Jan. T., 1957, from judgment of Court of Oyer and Terminer and General Jail Delivery of Lackawanna County, Oct. T., 1953, No. 17, in case of Commonwealth of Pennsylvania v. Daniel Bolish. Judgment affirmed; reargument refused February 14, 1958.
William J. McDonald, with him Edwin Utan, for appellant.
Ralph P. Needle, Assistant District Attorney, with him Carlon M. O'Malley, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Coehn, JJ.
OPINION BY MR. JUSTICE ARNOLD
Defendant had been convicted of the crime of murder in the first degree and the penalty fixed at death. On appeal (Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464), while affirming the action of the court below on the principal question as to felony murder, the death having resulted from an act in furtherance of the criminal conspiracy, this Court reversed because of certain trial errors and granted a new trial. Upon retrial the jury rendered a verdict of guilty of murder in the first degree and fixed the penalty at life imprisonment. This appeal followed.
The facts in this case were fully reported in Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464. A resume of what is more fully stated in the report of that case follows.
The Commonwealth contended that the decedent, Flynn, met his death as a result of arson, and that his death was a murder in the commission of a felony in which defendant was one of the principals. The Commonwealth's evidence was entirely circumstantial. In the early morning of July 22, 1953, an explosion, followed by fire, occurred in a house owned by Mrs. Mary Torti in Dunmore Borough, Lackawanna County. This house was of two stories, consisting of a kitchen and living room on the first floor and two bedrooms and bath on the second floor. It had been vacated several months prior to the explosion, at which time there was no furniture therein.
Firemen arrived several minutes after the explosion and found the interior filled with intense heat, the woodwork and the walls scorched and burnt, and fire playing around the screen on the front door. The firemen found on the kitchen floor an electric hot plate and electric cord three feet long. The electricity was
turned on. The fire originated at or near the hot plate, near which a pad was found which gave off the odor of kerosene. Close by was broken glass which appeared to be parts of a glass jar in which had been placed some volatile substance. There was the odor of gasoline in the kitchen. According to Commonwealth's experts, the fire was caused by an explosion of volatile material on the hot plate. The odor of kerosene remained up to the date of trial, indicating that a large amount of kerosene had been on the floor. It was established that about 30 to 50 seconds after the electric current was applied to the hot plate or the volatile material thereon, and explosion would occur. When she had departed from the house, Mary Torti had cleaned and vacated it, and no hot plate had been left there.
Flynn, the deceased, was seen about four o'clock in the morning, on July 22 in a coal company's office in Dunmore. He was badly burned, sought water from a night watchman, and died nineteen hours later as a result of the burns. The Commonwealth established a trail of flesh, fragments of material, and discarded shoes, from the Torti house to within 150 feet of the coal company office. The Commonwealth's expert, Dr. Mary L. Willard, testified that in her opinion, hair adhering to the venetian blind in the Torti house came from the head of the deceased. The discarded shoes, previously mentioned, also belonged to Flynn. In short, the evidence was sufficient to prove, beyond a reasonable doubt, that Flynn was in the Torti house when the fire and explosion took place early in the morning of July 22nd, and that he died as a result of the fire.
There was no direct evidence that the defendant, by his own hand, committed the arson which resulted in the death of his accomplice. There were, however, both direct and circumstantial evidence showing the
presence of Bolish in the Torti house at the time of the explosion.
On the second trial, defendant took the stand and denied all incriminating evidence. In its opinion refusing motion for new trial and arrest of judgment, the court below declared: "To say the least his [defendant's] denials and explanations were unconvincing, evasive and contradictory, and the jury apparently had no difficulty in rejecting his story in the face of the strong, detailed and closely knit chain of circumstances submitted in evidence by the Commonwealth". Our review of the testimony firmly establishes the justice of this conclusion.
The main contention of defendant is that the felony-murder doctrine does not apply to the death of an accomplice resulting from the accomplice's own act in the perpetration of arson. But, the fallacy in this contention lies in the disregard of defendant's active participation in the arson of which the killing was a direct result. As we heretofore pointed out, defendant was present at the time of the commission of the crime of arson and the resulting explosion. Thus he was actively participating in the felony which resulted in death. The element of malice, present in the design of defendant, necessarily must be imputed to the resulting killing, and made him responsible for the death. This defendant's position is no different than that of the defendant in Commonwealth v. Thompson, 321 Pa. 327, 184 A. 97; Commonwealth v. Guida, 341 Pa. 305, 19 A.2d 98, and countless other cases wherein the death resulted, directly from the perpetration of the felony. The fact that the victim was an accomplice does not alter the situation, since the act which caused his death was in furtherance of the felony.
No trial errors are now complained of, and since, as we have found, the accomplice's death was a direct
result of defendant's active participation in the act leading to the death, he must be held responsible for it.
In accordance with the Act of February 15, 1870, P.L. 15, § 2, 19 PS § 1187, we have reviewed both the law and the evidence in this record, and have determined that all the ingredients necessary to constitute murder in the first degree have been proved to exist.