No. 316 January Term 1978, No. 319 January Term 1979, Appeals from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Criminal Trial Division, Nos. 1219, 1220 and 1222 December Term 1977, Entered: No. 316 in the Supreme Court on July 26, 1978, No. 319 in the Superior Court on July 26, 1978, and certified to the Supreme Court on July 26, 1979
Benjamin Paul, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Franklin L. Noel, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., filed a concurring opinion. Larsen, J., filed a dissenting opinion in which Kauffman, J., joins.
Appellant, Howard Legg, was convicted by a jury of murder of the second degree, robbery, and possession of an instrument of crime-generally. Following a denial of post-verdict motions, Legg was sentenced to life imprisonment on the murder charge and to concurrent terms of imprisonment of five to ten years on the robbery charge and two and one-half to five years on the possession of an instrument of crime-generally charge. These appeals followed.
Legg first contends the evidence was insufficient as a matter of law to establish his guilt of murder of the second degree or of robbery.
After an examination of the record, we conclude that the evidence was clearly sufficient, but that a new trial is necessary on the murder and robbery charges because of prejudicial error in the trial court's instructions to the jury.
The record reveals that Legg and James Bell, Jr., spent several hours the night of September 26, and early morning of September 27, 1977, together with others, traveling in Bell's automobile to various locations in Philadelphia. Eventually, the others departed from the group, and Legg accompanied Bell to the latter's apartment where they engaged in sex. An argument occurred, and Legg fatally stabbed Bell in the back with a knife. Legg then stole Bell's wallet, keys, money, and automobile.
Testifying in his own behalf, Legg said that he stabbed Bell after the latter had attacked him with a knife and that the thefts were a spontaneous afterthought to the stabbing. He also said he had no intention to rob or steal prior to or at the time of the stabbing.
The trial judge, following a request from the Commonwealth for further instructions, told the jury "the intent to commit the felony of robbery may be formed by the actor, the robber, the one doing the acts, either before or after the infliction of the fatal wound . . . ." Legg's trial counsel entered a specific objection to this instruction following the charge and also specifically assigned it as error in post-verdict ...