Clayton R. Wilcox, Gettysburg, for appellant.
Donald L. Reihart, Dist. Atty., Sheryl Ann Dorney, Asst. Dist. Atty., York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Nix, J., filed a dissenting opinion.
The only issue we need to decide*fn1 is the right of the appellant, who was found guilty of second-degree murder, to a new trial because of a supplemental charge of the trial judge in answering a question put to him by the jury.
The appellant and Myers were passengers in Sanabria's car when it was driven near the home of an elderly lady. There was some conflict in the testimony as to whether their purpose was to burglarize or to obtain money by a ruse. There was some testimony that only after Myers got out of the car with a tire iron did the appellant realize that force was to be used and that almost immediately thereafter the appellant and Sanabria left the area. It is admitted that Myers broke into the premises of the lady and killed her by the use of the tire iron. There was further evidence that appellant and Sanabria returned to the general area and picked up Myers and that thereafter the appellant learned for the first time of the homicide.
After the jury had been out for some time they asked three questions, one of which was:
"If the Defendant did not know, up to the moment Myers got out of the car with the tire iron that burglary was to be perpetrated, could he be considered as an accomplice?"
The judge's response was very extensive and included the following:
"Ladies and gentlemen, if the Defendant didn't know until the moment that Myers got out of the car that there was a burglary afoot, then up to that point he should not be considered an accomplice, and as of that moment,
would not be under the Felony Murder Doctrine or the theory of accomplice as previously explained, responsible ...