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COMMONWEALTH v. MILESKI (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
MILESKI, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 893, in case of Commonwealth of Pennsylvania v. Stanley Mileski.

COUNSEL

Alexander Hemphill, for appellant.

Albert L. Becker, Assistant District Attorney, with him Milton M. Stein, Assistant 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, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.

Author: Manderino

[ 454 Pa. Page 14]

The appellant, Stanley Mileski, was convicted of first-degree murder and sentenced to life imprisonment. Post-trial motions were denied and this appeal followed. The only question raised by the appellant is whether there was error in the charge to the jury. We conclude that there was and reverse the judgment of sentence.

Two indictments were returned against the appellant. One indictment was for murder and the other indictment was for aggravated robbery. The charges resulted following the death of Charles Tobin from suffocation and thoracic injuries caused by a blunt instrument.

At the conclusion of the prosecution's case, the defense demurred to the indictment concerning aggravated

[ 454 Pa. Page 15]

    robbery. The trial court sustained the demurrer stating that the robbery had not been established beyond a reasonable doubt. Consequently, since the demurrer to the robbery indictment had been sustained, the defense presented no evidence concerning the alleged robbery. The defense mainly consisted of evidence concerning the appellant's intoxication which could have reduced the possible verdict of first-degree murder to second-degree murder.

Although the demurrer to the robbery indictment was sustained, in the charge to the jury, the trial court in defining the types of first-degree murder stated: "The law of Pennsylvania provides that all murder which shall be perpetrated by means of poison or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree." (Emphasis supplied.)

Since the trial court had sustained the demurrer to robbery there was no need to mention the felony-murder theory. Shortly afterwards, however, the trial court did inform the jury that "the use of poison, or lying in wait, or perpetrating or attempting to perpetrate one of the enumerated crimes does not apply and has no relevance to this case, as I have sustained a demurrer to the bill of indictment charging the defendant with aggravated robbery. I will, therefore, not dwell on these." Later in the charge, the trial court repeated that there was no robbery in this case.

Unfair prejudice may result if the jury is told about the felony-murder theory in a case such as this where there has been testimony about the alleged commission of a robbery followed by the elimination of the ...


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