Appeal from judgment of Court of Oyer and Terminer of Allegheny County, Jan. T., 1966, No. 31, in case of Commonwealth of Pennsylvania v. Abraham Crews.
Joseph I. Lewis, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell and Mr. Justice Musmanno dissent.
On November 13, 1965, between 8:00 and 9:00 p.m., the deceased, Raymond Germek, was operating a taxicab in the City of Duquesne. While there was a fare in the front seat of the cab, two men opened the back doors and requested the driver to take them to McKeesport. The driver replied he could not take them because he had another fare elsewhere. The fare exited from the cab a block after the two men entered. Within the next few moments, the driver was stabbed twice about the head, and the two men were seen running away. The cab driver stated to various people that two Negroes had tried to rob him. Although he managed to drive his cab to McKeesport Hospital, Germek died five days later from complications from the stab wounds.
Appellant, along with one Fred Tedders, was indicted for murder. A severance was requested and granted. Tedders was tried first and convicted of first degree murder. Crews was then tried beginning November 28, 1966, and was convicted by a jury of first degree murder, with penalty set at life imprisonment. Appellant's motions for new trial and arrest of judgment were denied by a court en banc. This appeal followed the judgment.
Appellant argues that the court below erred in denying these motions. We hold that the denial of the motion for arrest of judgment was proper, but that it was error to deny the motion for new trial.
On motion for arrest of judgment the test is "whether accepting as true all the evidence upon which, if believed, 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." Commonwealth v. Kravitz, 400 Pa. 198, 201, 161 A.2d 861 (1960) and cases cited therein. Moreover, in passing upon such a motion, all evidence actually received must be considered, whether the trial rulings thereon were right or wrong. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Although we are of the opinion that the evidence can support the verdict even without the improperly admitted evidence which we shall discuss with regard to the new trial motion, it is clear that that evidence can be considered on the motion for arrest of judgment.
The evidence here was ample to support the verdict. Two men were observed in the taxicab of the deceased. They were seen to struggle with the driver and flee from the cab. Appellant fit the general description of one of the criminals as to height, coloration, and clothing. Appellant was in the company of his alleged accomplice before and after the crime, and was wearing the clothes described by the eyewitness. A fellow prisoner in the Allegheny County Jail testified to Crews' admission that he was in the cab on the night of November 13, 1965. Surely, this evidence is sufficient to support a finding that appellant participated in an attack upon the driver. Appellant contends further, however, that there is no proof of the malice necessary to support a murder verdict. Yet it has long been the rule at common law and in Pennsylvania that a killing committed in the perpetration of a felony is murder. Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962). The malice in the commission of the felony is imputed to the homicide. Under the Pennsylvania degree ...