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COMMONWEALTH v. WADDY (04/20/72)

decided: April 20, 1972.

COMMONWEALTH
v.
WADDY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1969, No. 338, in case of Commonwealth of Pennsylvania v. John W. Waddy.

COUNSEL

Walter T. Darmopray, with him Dennis E. Haggerty, for appellant.

Judith Dean, Assistant District Attorney, with her 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.

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

Author: O'brien

[ 447 Pa. Page 263]

Appellant pleaded guilty to murder generally and was adjudged guilty of murder in the first degree in accordance with the Pennsylvania Felony Murder Statute, Act of June 24, 1939, P. L. 872, § 701; December 1, 1959, P. L. 1621, § 1, 18 P.S. § 4701. Appellant was sentenced to life imprisonment, and the matter is now before this Court on direct appeal from that judgment of sentence.

Appellant argues that the court below erred in convicting him of murder in the first degree when the fatal

[ 447 Pa. Page 264]

    act was committed by his confederate after the robbery had been completed, in the absence of appellant, and without his knowledge and approval. Tangentially, he argues that the killing was not in furtherance of a robbery because the robbery had been completed and the killing was accomplished subsequent thereto in appellant's absence. We disagree with appellant's contentions and affirm the judgment of sentence.

Appellant and his confederate, one Gilmore, had for some time engaged in a course of conduct involving the gratification of their homosexual desires as well as providing funds to them. Their scheme was to have Gilmore "pick up" a homosexual partner and take him to a location prearranged with appellant. While Gilmore and his "pickup" were engaged in homosexual acts, appellant would appear and the victim would be robbed. Thereafter appellant and Gilmore would divide the proceeds.

On April 24, 1969, appellant and Gilmore went to the Greyhound Bus Terminal in Center City, Philadelphia, where Gilmore went to the men's room and emerged with the intended victim for that day. He gave the necessary sign, by wink or nod, to appellant, who knew where to appear in furtherance of their scheme. When appellant arrived at the prearranged spot, a platform between two levels of stairs in the terminal building, he observed Gilmore and the victim in the course of homosexual relations. Appellant then made his appearance and Gilmore pulled out a razor and demanded money. Appellant thereupon removed the victim's wallet from his pocket.

From this point on the testimony of appellant is somewhat in conflict. In a statement given to the police, the voluntariness of which was determined in a pretrial suppression hearing, and which voluntariness is ...


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