Appeal from judgment of Court of Common Pleas of Lehigh County, April T., 1970, Nos. 178 and 179, in case of Commonwealth of Pennsylvania v. James B. Dankel.
Malcolm J. Gross, Assistant Public Defender, with him Robert E. Donatelli, Assistant Public Defender, for appellant.
Richard J. Makoul, Assistant District Attorney, with him George J. Joseph, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Manderino concurs in the result. Mr. Chief Justice Jones took no part in the consideration or decision of this case.
The appellant, James B. Dankel, following his conviction by a jury of murder in the first degree was sentenced to life imprisonment as the jury directed. From the judgment of sentence, this appeal was filed.*fn1
The factual background is this:
In the early morning hours of October 27, 1969, a James Newhart and a Charles Phillips broke into the residence of Harry Kramlich in Allentown, Lehigh County, through a second-story window. The two then proceeded to a first-floor bedroom where they bound and gagged Kramlich and placed an ammonia soaked rag over his face. Kramlich died from a respiratory insufficiency as a result of the inhalation of the ammonia.
Residents of a nearby house were awakened by the noise of the scuffle and alerted the police. Newhart was taken into police custody immediately, in an alley to the rear of the Kramlich property. Dankel, the appellant, was arrested about one and a half blocks from the scene as he stopped his automobile at a traffic light. Frank Elliot and Charles Phillips were later arrested and all four were charged with the burglary and murder.
Newhart and Elliot were witnesses for the Commonwealth at trial and, in relevant part, they both testified that during several conferences in which Dankel and Phillips participated plans for the burglary were discussed and agreed upon; that on the night of October 26th and the early morning hours of the 27th, the four drove around Allentown in an automobile owned and operated by Dankel and picked up certain items, including ammonia and a ladder, to be used in perpetrating the burglary; that the four then drove to the
Kramlich address in Dankel's automobile where Newhart and Phillips alighted and proceeded to carry out the burglary; that Elliot remained in the rear yard to serve as a lookout and Dankel waited in his automobile on a nearby street to drive the conspirators from the scene after the burglary was completed. However, they admitted before proceeding to the Kramlich residence, Dankel stated two or three times he "didn't want to get involved in this thing."
It is not asserted that the trial evidence was insufficient to establish Dankel aided and abetted in the perpetration of the burglary,*fn2 but it is urged that since Dankel did not participate in killing Kramlich and never entered into any plan contemplating such a crime, the trial court erred "in permitting the felonymurder rule to be applied under these facts." This contention was fully answered recently in ...