Appeal from judgment of Court of Oyer and Terminer of Montgomery County, Feb. T., 1966, No. 294, in case of Commonwealth of Pennsylvania v. John Phillip Chermansky.
James R. Caiola, for appellant.
Arthur L. Jenkins, Jr., Assistant District Attorney, with him Richard A. Devlin and Henry T. Crocker, Assistant District Attorneys, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones dissents.
John Phillip Chermansky was convicted by a jury in Montgomery County of murder in the second degree. A motion for a new trial was dismissed and a prison sentence of two and one-half to ten years was imposed. Chermansky appeals from the judgment.
It is urged that, viewing the trial testimony in the light most favorable to the Commonwealth, a finding of murder cannot be sustained or, in the event this position is not affirmed, the verdict was against the weight of the evidence.
The prosecution arose as the result of the fatal shooting of Marcelle Hardison at about 2:30 a.m. on March 19, 1966, on a public street near Chermansky's home. The Commonwealth's evidence at trial that Chermansky fired the fatal shot with a deer rifle was not challenged, but it was asserted that the killing was accidental or, if intentional, justifiable.
Chermansky testified that, while sleeping in his home, he was awaked by a noise; that he found a set of double doors on the side of his house pushed in about eight inches and kept from opening completely by an attached chain; that, upon looking out a window, he saw an unknown individual come out of an alleyway adjacent to his home and proceed to a house across the street, where "he started fixing around the windows"; that the individual then ran into an alley-way as an automobile came down the street; that shortly thereafter he saw this same individual ". . . monkeying around the windows" of another house across the street; that he sent his son out the back door of his home to notify the police; that he secured his rifle, opened the front door and went out on the doorstep, intending to restrain the prowler until the police arrived; that the prowler then started to run and he yelled "Halt or I'll shoot"; that, when the prowler continued
to run, he fired a shot in the direction of a tree, intending not to kill or injure the prowler, but only to frighten him.
A private person in fresh pursuit of one who has committed a felony may arrest without a warrant. Commonwealth v. Micuso, 273 Pa. 474, 117 A. 211 (1922); Commonwealth v. Long, 17 Pa. Superior Ct. 641 (1901); 2 Trickett, The Law of Crimes in Pennsylvania 683 (1908). And in Pennsylvania we have always followed the common law rule that if the felon flees and his arrest cannot be effected without killing him, the killing is justified. See Commonwealth v. Micuso, supra; 2 Trickett, supra. We hasten to note that before the use of deadly force is justified the private person must be in fresh pursuit of the felon and also must give notice of his ...