No. 21 Special Transfer Docket, Appeal from judgment of sentence of the Luzerne County Court of Common Pleas, Criminal Division, No. 2633-B of 1975
John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
Michael I. Butera, Assistant District Attorney, Pittston, for Commonwealth, appellee.
Cercone, President Judge, and Roberts and Lipez, JJ.*fn*
[ 267 Pa. Super. Page 487]
Appellant, Walter Spallone, entered a plea of guilty to murder generally for killing Michael Valgene, Sr. On May 19, 1976, the trial court determined that appellant was guilty of murder of the second degree for committing a felony-murder. After denying post-verdict motions, the court sentenced appellant to life imprisonment. Appellant's sole contention is that he could not be guilty of felony-murder because as the fact finder determined he did not form the intent to rob until after commission of the killing. We agree, reverse judgment of sentence and remand for a new hearing on degree of guilt.
Based on credible evidence, the trial court found that appellant and several friends were visiting Valgene as they often had before, drinking, talking and smoking. Valgene and appellant began to quarrel. Valgene threw a beer bottle at appellant, striking him, and then attacked appellant with a knife, inflicting a deep cut in one of appellant's
[ 267 Pa. Super. Page 488]
fingers. Appellant and Valgene grappled, rolling on the floor. Appellant grabbed a pair of scissors and stabbed Valgene 37 times. Two of the stabs were fatal; the others were superficial. After he killed Valgene, appellant ran outside for a few seconds, then ran back in, cut Valgene's pants pocket with the scissors and removed his wallet. Appellant then fled.
The trial court determined that appellant was not guilty of murder of the first degree because he killed out of provocation, thus negating the specific premeditation required. The court determined that appellant was guilty of murder of the second degree because he had killed while perpetrating a robbery.*fn1 Although the court found as fact that appellant had not formed the intent to rob until after the killing, it nonetheless held him guilty of murder of the second degree for committing a felony-murder. The court concluded that an accused commits a felony-murder while perpetrating a robbery even when the intent to rob forms subsequent to the killing. In this conclusion, on this record, the court erred.
One of the basic concepts of criminal law is that there must be a concurrence of intent with the prohibited act. W. LaFave and A. Scott, Criminal Law § 34 at 237 infra (1972). In felony-murder, the malice necessary to sustain a conviction for murder is inferred from the underlying felonious act. See Commonwealth v. Yukanavich, 448 Pa. 502, 295 A.2d 290 (1972); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). Accordingly, for an accused to be guilty of felony-murder, he must commit the killing while performing or attempting to carry out the underlying felony. Commonwealth v. Yukanavich, supra. Since an accused cannot be perpetrating or attempting to carry out a felony unless, at the time of the prohibited acts, he has formed the intent to commit the felony, a killing cannot be in the course of perpetrating or attempting to perpetrate a felony if the accused, as here found by the court, forms the intent to commit the felony only after the killing.
[ 267 Pa. Super. Page 489]
Of those jurisdictions which have faced this question, an impressive majority has likewise concluded that an accused is not guilty of felony-murder where he forms felonious intent only after he commits the killing. See United States v. Bolden, 169 U.S.App.D.C. 60, 514 F.2d 1301 (1975); United States v. Mack, 151 U.S.App.D.C. 162, 466 F.2d 333, cert. denied, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223 (1972); Long v. United States, 364 A.2d 1174 (D.C.Ct.App.1976); People v. Gonzales, 66 Cal.2d 482, 58 Cal.Rptr. 361, 426 P.2d 929 (1967); State v. Snow, 383 A.2d 1385 (Me.1978); State v. Montgomery, 191 Neb. 470, 215 N.W.2d 881 (1974) (semble); People v. Joyner, 26 N.Y.2d 106, 308 N.Y.S.2d ...