Appeal, No. 261, Jan. T., 1960, from judgment of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, Feb. T., 1956, Nos. 811 and 813, in case of Commonwealth of Pennsylvania v. Robert W. Thomas. Judgment affirmed.
Joseph N. Bongiovanni, Jr., with him Frederick F. Blumberg, for appellant.
Burton Satzberg, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The factual background of the homicide which resulted in the conviction of Robert W. Thomas of murder in the first degree with the penalty fixed at life imprisonment is set forth at length in Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234, Commonwealth v. DeMoss, 401 Pa. 395, 165 A.2d 14 and Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640. Except as relevant and pertinent to the issues raised on this appeal, such background need not be herein recited.
The theory of the Commonwealth was that Thomas, a deputy sheriff of Dade County, Miami, Florida, became acquainted with Mrs. Lulubel Rossman (the deceased) when she enlisted the aid of Thomas' fellow deputy to check on the activities of a man with whom
she thought herself to be amorously involved. Through such acquaintanceship, Thomas learned that deceased was in the habit of having large sums of money on her person and in her living quarters. The Commonwealth sought to prove that Thomas conceived the idea of robbing the deceased and to that end, through numerous telephone calls between Florida and Oklahoma and personal meetings in Florida and Oklahoma, formed a conspiracy with Gus DeMoss, Raymond Wilson and Frank Ellsworth;*fn1 in furtherance of that conspiracy, Wilson and Ellsworth went to Philadelphia and, on July 3, 1955, entered the deceased's room in the Adelphia Hotel where they robbed her of a large sum of money; in the course of that robbery, the deceased met her death.*fn2 There is no doubt that the plan and all the details of the conspiracy, insofar as Thomas is involved, were formulated outside Pennsylvania, that only Wilson and Ellsworth were in Pennsylvania when the felony murder took place and that Thomas was never in Pennsylvania until he surrendered for trial.
Thomas was indicted on the charges of conspiracy and murder. After a trial in the Courts of Oyer and Terminer and Quarter Sessions of Philadelphia County before a court and jury, Thomas was found guilty both of conspiracy and of murder in the first degree with the penalty fixed at life imprisonment. A nolle pros was entered on the conspiracy charge and Thomas was sentenced on the murder charge. From the judgment of sentence Thomas has taken this appeal.
Thomas' contentions are three-fold: (a) since the proof of the Commonwealth is that ...