Appeal, No. 1, March T., 1961, from judgment of sentence of Court of Oyer and Terminer of Allegheny County, Nov. T., 1959, No. 161, in case of Commonwealth of Pennsylvania v. John L. Hart. Judgment of sentence affirmed.
H. David Rothman, for appellant.
Samuel Strauss, Assistant District Attorney, with him William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Defendant Hart*fn1 was found guilty of murder in the first degree by a jury which imposed a penalty of life imprisonment. Defendant appealed from the judgment and sentence. He alleges four reasons: (1) The evidence was insufficient to establish that the killing occurred in the perpetration of a robbery within the meaning of the Felony-Murder Rule; (2) The Court erred in admitting into evidence in rebuttal of defendant's testimony, the transcribed testimony of a tape recording of defendant's pre-trial conversation with the Assistant District Attorney; (3) Defendant was denied a fair trial because of the ineffectiveness of his counsel; and (4) Defendant's rights against self-incrimination were violated by the Assistant District Attorney when he obtained a confession.
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,*fn2 § 701 provides: "All murder which... shall be committed in the perpetration of, or attempting to perpetrate any... robbery... shall be murder in the first degree." Robbery is defined by § 704 of the Code as follows: "Whoever robs another... or assaults any person with intent to rob him, or by menace or force, demands any property of another, with intent to steal the same..."
In Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861, the Court said (page 208): "'... "'It is clearly
settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt: [citing 10 recent cases].'"'"
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,*fn3 the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, i.e., the murder of Max Kravitz: [citing 11 prior decisions of this Court]": Commonwealth v. Kravitz, supra (page 201).
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 ...