Philip D. Freedman, Asst. Public Defender, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., Reid H. Heingarten, Harrisburg, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy and Manderino, JJ., concurred in the result. Roberts, J., filed a concurring opinion.
On November 9, 1973, a man and a woman robbed a tavern known as Louie's Dream House located in Harrisburg. The woman was armed with a pistol and the man had a sawed-off shotgun. During the course of the robbery, the
male intruder shot a patron in the chest killing the victim instantly. The pair then emptied the cash register and fled from the tavern. Appellant conceded that she was the female participant in the robbery and after trial, was found guilty of murder of the first degree and robbery. This is a direct appeal from the murder conviction; no appeal has been taken from the robbery conviction.*fn1
The single issue is whether appellant could properly have been held criminally responsible for the death of the victim, Ms. Vivian Proctor, where it is admitted that appellant did not fire the shot which caused the death. It is argued that under the 1972 Crimes Code, Dec. 6, 1972, P.L. 1482, No. 334, § 1 et seq., 18 Pa.C.S.A. § 101 et seq., one cannot be held guilty for a criminal homicide, Section 2501 (and therefore also cannot be held accountable for murder, Section 2502) where that person does not actually cause the death. In short, appellant's argument is premised upon the view that the 1972 Crimes Code eliminated vicarious responsibility for criminal homicides. We disagree and for the reasons set forth below affirm the judgment of sentence.
Appellant frames her argument as an assault on the felony-murder rule and devotes a great deal of her brief to an exhaustive history of that rule. While we applaud the scholarship in that regard it regrettably fails to provide illumination upon the issue she has actually raised in this appeal. Appellant has failed to distinguish between the common law concept of felony-murder, which provides a basis for implying malice, and the requirements for accomplice liability in criminal law. As we noted in Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958), "In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing." This doctrine may be applicable whenever a death occurs during the perpetration of or an attempt to perpetrate a
felony, whether or not the accused actually inflicted the mortal wound. Restated, the felony-murder concept was a judgment by our courts at common law that the willingness to participate in conduct amounting to a felony exhibited the recklessness of consequences, the callous disregard and the hardness of heart which evidenced a malicious state of mind.*fn2 This reasoning ...