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COMMONWEALTH v. SCHWARTZ (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
SCHWARTZ, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1968, No. 1582, in case of Commonwealth of Pennsylvania v. Adolph Schwartz.

COUNSEL

James D. McCrudden, for appellant.

J. Bruce McKissock, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Pomeroy

[ 445 Pa. Page 517]

Appellant was convicted by a jury of murder in the first degree and sentenced to life imprisonment. Motions for a new trial and in arrest of judgment were dismissed by the court en banc, and this appeal followed.

The charge against appellant grew out of an attempted burglary and robbery at the home of a physician which resulted in the gunfire death of a Philadelphia police officer and of one Seeley, a co-felon with appellant. Although appellant was armed when he was captured at the scene of the crime, there is no claim that he was the actual killer of the police officer; rather, the Commonwealth relied on the coconspirator theory to sustain appellant's conviction under our felony-murder rule.

The defense of appellant was that although he had conspired with an accomplice, Seeley, to burglarize an empty home, appellant had not bargained for an assault on the physician and his wife, nor on any use of a gun, pressed upon him by Seeley. He testified that he protested against the plan to seize the occupants of the house, but was forced to continue in the plot by Seeley. Appellant testified that Seeley was awaiting trial on another murder charge, and was desperate for money to pay his lawyer to defend the case; that Seeley said that if he didn't get this money he would be dead, and "that I might as well be dead, too", and wasn't "going to walk away". Appellant testified he was in fear of Seeley, that he wanted to leave, but couldn't, and went along with the plan motivated entirely through fear and coercion. When the doctor appeared

[ 445 Pa. Page 518]

    and was confronted by Seeley, appellant and a third accomplice, one McIntyre, Seeley aimed a gun at the doctor's face and appellant held a gun at his back. Seeley then hit the doctor a severe blow on the head. While Seeley went to search for valuables, Schwartz guarded the victim and his wife. The wife managed to slip into another room and telephone the police. When Schwartz saw the police approaching, he ran to the stairs and warned Seeley. In the fracas which followed, Seeley shot and killed one of the police officers, and was himself killed by the return fire of other officers. Appellant then hid in an upstairs closet where he was found over an hour later.

Appellant asserts that four errors were committed by the trial judge in his charge, and that the judge also erred in excluding certain evidence. He contends that the errors were sufficiently prejudicial to require a new trial. We disagree, and affirm the judgments of the lower court.

Appellant's first contention is that the trial court erred in instructing the jury that appellant's admission of his participation in the conspiracy to commit burglary was sufficient to support a first-degree murder conviction. The trial judge charged: "Where several felons combine in the commission of a robbery or burglary and one of them kills the victim, the other felons are equally guilty of first degree murder under the co-conspirator rule that the acts of one principal which are in furtherance of the common, unlawful design are attributable to each of his co-felons. When felons enter into a conspiracy to commit robbery or ...


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