No. 989 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, No. 528 of 1981.
Dara A. DeCourcy, Deputy District Attorney, Pittsburgh, for Com., appellant.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
Rowley, Hester and Roberts, JJ.
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The Commonwealth, District Attorney of Allegheny County, appeals from a pre-trial order entered in the above matter which prohibits the Commonwealth's use of evidence of an alleged robbery at appellee's forthcoming trial on the charge of criminal homicide, "for the purpose of establishing the alleged robbery as the underlying felony in furtherance of any Commonwealth theory seeking to establish second degree or 'felony' murder . . . ." The pre-trial order followed entry of a separate pre-trial order severing the
[ 335 Pa. Super. Page 391]
charges of robbery and criminal homicide for purposes of trial. Because the order has the effect of terminating prosecution on a theory of felony-murder and "substantially handicaps" prosecution on the charge of criminal homicide generally, the Commonwealth has taken a direct appeal. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).
The alleged robbery which forms the basis for the Commonwealth's felony-murder theory occurred at approximately 12:30 p.m., on March 20, 1982, in the Borough of Penn Hills, Allegheny County. The alleged criminal homicide "committed while defendant was engaged as a principal or accomplice in the perpetration of a felony" occurred 25 hours later and 10 miles away, at approximately 1:30 p.m., on March 21, 1982, in the Oakland section of the City of Pittsburgh. The victim of the alleged criminal homicide, according to the Commonwealth's offer of proof, "had just alighted from a bus along with other passengers" when she was struck by an automobile being driven by appellee. City police had been engaged in a high-speed chase with appellee when the alleged homicide occurred. The chase commenced "some minutes" before the alleged homicide, when City police determined that appellee's vehicle matched the description of the getaway vehicle involved in the previous day's robbery in Penn Hills.
The Commonwealth's offer of proof included a representation that appellee matched the description of one of the perpetrators of the robbery which had been given by a witness, and that testimony would be forthcoming from the victim of the robbery which would positively identify appellee. The offer further represented that on the evening of the alleged homicide, appellee gave police detectives a statement in which he admitted his involvement in the alleged robbery and in the high-speed chase which led to the alleged homicide. Appellee specifically admitted, according to the offer, "that it was his belief that the police were at [the] time [of the high-speed chase], associating his vehicle as the one involved in the . . . robbery." Shortly after the alleged
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homicide, appellee also allegedly told his sister that he and "'another guy' . . . did a robbery and that today he saw a police car turn around and he thought the car was coming after him for the robbery and he got scared and took off."
Appellee, in his statement to police detectives, "indicated that [he and his accomplice] split the [robbery] proceeds of approximately $140.00," and further indicated that he had been both "out jogging" and at his residence for at least a portion of the 25 hours between the two alleged crimes. Additionally, the record shows that appellee allegedly engaged in another robbery in that 25-hour period. ...