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filed: October 28, 1983.


No. 1233 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Venango County, Criminal Division, at S.D. No. 20-A of 1981.


Nancy S. Schultz, Franklin, for appellant.

William G. Martin, Franklin, for Commonwealth, appellee.

Spaeth, Brosky and Montemuro, JJ.

Author: Montemuro

[ 320 Pa. Super. Page 538]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Venango County entered against the appellant, Robert Lloyd Middleton. Appellant was charged with criminal homicide in connection with the shooting death of Linda Jane Miller. A consolidated jury trial was held for the appellant and a co-defendant, James Hartzell,

[ 320 Pa. Super. Page 539]

    in which the appellant was found guilty of second degree murder.*fn* His motions for a new trial and in arrest of judgment were denied by the trial court and he was sentenced to life imprisonment.

The appellant raises several claims of error herein. First, he attacks the constitutionality of the felony-murder statute on two bases: (1) he argues that the imposition of a sentence of life imprisonment on an accomplice to a felony-murder violates the Eighth Amendment prohibition against cruel and unusual punishment; and (2) he argues that the Commonwealth's ability to establish the requisite state of mind by implication violates due process of law. Second, he contends that the trial court erred in denying his demurrer to the charge of felony-murder. Third, he contends that the trial court erred in admitting evidence of other crimes committed by the appellant and his co-defendant. Finally, he contends that the trial court erred in joining his trial with that of his co-defendant, James Hartzell.

The facts relevant to this appeal are as follows:

On the evening of January 17, 1981, the appellant, Jerry Rice and John Perry drove to the home of James Edward Hartzell to try to sell Hartzell a set of stereo speakers and a .44 magnum handgun which Rice and the appellant had obtained in a burglary earlier. The handgun was loaded and kept in the glove compartment of Rice's automobile. While at the appellant's house they each had a few whiskey and orange juice cocktails and discussed driving into Oil City to "rob drunks". They also discussed going to Rouseville to rob one Carrie Schilk, a cousin of Hartzell. Rice, Hartzell, Perry and the appellant left the Hartzells' home at approximately 10:30 to 11:00 P.M. They were all in Rice's automobile. Perry was dropped off at his house in Pin Oak Village and the others proceeded to Oil City.

Once there, Rice parked the vehicle. The three men went to a bar called "Scrubby's". Hartzell and the appellant stayed and had a drink. Rice left because he was underage

[ 320 Pa. Super. Page 540]

    and the barmaid refused to serve him. Rice went out to the street and waited for a victim. Rice soon became cold and returned to his automobile where he was met by Hartzell and the appellant. It was approximately 1:00 A.M.

It was at this time the criminal activity, later described by some as a "crime spree", began. Rice saw a man who was carrying several cartons leaving a nearby bar. The man got into his car. After some discussion among the felons, Rice exited the vehicle with the gun and walked over to the car and knocked on the window. The man, one William Gesin, opened the window whereupon Rice produced the pistol and demanded Gesin's wallet. Rice took the proffered wallet and told Gesin to drive straight over the hill. He then returned to the car where the proceeds of the crime were divided.

The three men then decided to leave and re-enter Oil City as an evasive maneuver to escape detection for the Gesin robbery. Rice was driving, the appellant was in the front passenger seat and Hartzell was sitting behind the appellant in the rear seat. The gun was on an arm rest between Rice and the appellant. They drove a few miles out of town and then returned to Oil City, with their ultimate destination being Rouseville. They stopped on the roadside across from the Oasis Bar so that Rice and Hartzell could urinate.

At that unfortunate moment, Linda Jane Miller walked out of the Oasis Bar and toward her pick-up truck in the parking lot. After some discussion among the three men, the appellant retrieved the handgun from the car and walked across the street for the purpose of robbing Linda Miller. Hartzell said to the appellant words to the effect "if she was ugly to blow her away." The appellant followed Miller to her truck; however, she reached the truck and drove away before he could consummate the crime.

The appellant returned to the car and, again after some discussion, the three men decided to follow her to her home and rob her there. They did, in fact, follow her toward Rouseville. Rice wanted to pass Miller because the truck was weaving back and forth across the road. Hartzell said

[ 320 Pa. Super. Page 541]

    to Rice "this is a good road for it." He also instructed Rice as to the exact moment to pass.

As Rice passed the truck he heard a shot from the back seat. Hartzell said that he thought he got her. They continued up the road for about three-quarters of a mile, turned around and returned to where Miller's truck had crashed into a ditch. The appellant got out of the car and talked to another motorist who had stopped to investigate. The appellant said he would call the police. Miller was not visible in the truck, probably because she had slumped to the floor. The men then left and proceeded to Rouseville.

Hartzell gave directions to Rice leading to the home of Carrie Schilk, Hartzell's cousin. Rice's testimony indicates that during the entire time subsequent to the shooting of Miller, the gun was in Hartzell's possession. At Schilk's house, Rice and the appellant went to the door while Hartzell waited around the corner of the house. Schilk opened the door, and the appellant and Rice grabbed her and turned her around. Hartzell entered and hit her on the head with the butt of the handgun. The force of the blow shattered the pistol grips. They proceeded to rob Schilk of money and personal items, and then left. The appellant also took Schilk's pick-up truck.

Subsequent to the Schilk robbery, the appellant abandoned the truck and the three men went to a restaurant called the Villa Italia. At trial the night manager, Charles Latchaw, identified all three men as being present at the restaurant at approximately 4:00 A.M. After eating, the men ...

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