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COMMONWEALTH v. BANKS (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
BANKS, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, Nos. 885 to 893, inclusive, in case of Commonwealth of Pennsylvania v. James Banks.

COUNSEL

Louis Lipschitz and Joseph R. Danella, for appellant.

Linda West Conley, James T. Ranney, and Milton M. Stein, Assistant District Attorneys, 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 Nix.

Author: Nix

[ 454 Pa. Page 404]

Appellant, James Banks, was tried by jury in the Court of Common Pleas of Philadelphia County, Criminal Division and found guilty of murder in the first degree. He was also convicted on four counts of aggravated robbery and assault and battery. Demurrers were sustained by the court to counts of aggravated assault and battery and the jury returned a verdict of not guilty on the final count of assault and battery. Arguments were heard before the court en banc on motions for new trial and in arrest of judgment and were denied. Thereafter appellant was sentenced to life imprisonment on the murder bill. Sentences on the other bills of indictment were suspended by the lower court. This case is before us on direct appeal.

Evidence adduced at the trial revealed that at approximately 11:00 p.m. on December 13, 1969 the appellant and three companions pursuant to an agreement went into the Penn Central 30th Street Station whereupon they assaulted Jacob Blank and robbed him of his wristwatch, a cigarette lighter, and $40 in cash. Appellant and his companions then sold the watch and divided the proceeds of the robbery among themselves. The four then went to a party arriving at approximately 1:00 a.m., December 14, 1969. While there appellant and two of the original group again agreed to engage in additional robberies. One of the group named Ford remained behind and his place was taken by Marshall Jones. Arriving again at 30th Street Station they assaulted Steven Kreloff on the station platform throwing him from the platform to the tracks below and robbing him of his wristwatch and $3 in cash. While appellant and his confederates were robbing Kreloff, the fourth man assaulted and robbed Harry Pollack at the other end of the platform station. Pollack was thrown from the platform to the tracks below as a result of which he fractured six ribs and later died of

[ 454 Pa. Page 405]

    multiple injuries received from the fall. The group then went to 15th and John F. Kennedy Boulevard where one of the group robbed Annie Thompson of her pocketbook containing $2.80 and in the process broke three bones in her face.

Appellant alleges numerous assignments of error which can be categorized according to sufficiency of the evidence, evidentiary objections, refusal to grant a mistrial, and objections to the court's charge to the jury.

I. Sufficiency of the Evidence

Appellant's initial contention is that the evidence is insufficient to support a first degree murder conviction. Specifically, appellant contends that the statements of Anne Yancey and Earl Gallagher did not prove robbery, a necessary element to substantiate the Commonwealth's theory of felony-murder.

In adjudging a felony-murder, it is necessary to show that the conduct causing death was done in the furtherance of the design to commit the felony. Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290 (1972); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958); Perkins, "Malice Aforethought," 43 Yale L.J. 537 (1934). The victim's death must have been a consequence of a proven robbery. The testimony received from Anne Yancey described the decedent as having said he had been beaten and pushed onto the tracks. The testimony of Earl Gallagher related that the victim had stated that he had been down on the platform waiting for a train when some youth accosted him demanding money from him and when he said he had none pushed him ...


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