Com. v. Bastone

• Court: United States State Supreme Court of Pennsylvania
• Citation: 466 Pa. 548,353 A.2d 827
• Parties: COMMONWEALTH of Pennsylvania v. William BASTONE, Appellant.
• Decision Date: 17 March 1976

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353 A.2d 827 466 Pa. 548 COMMONWEALTH of Pennsylvania
v.
William BASTONE, Appellant. Supreme Court of Pennsylvania. Submitted Jan. 12, 1976.
Decided March 17, 1976.

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[466 Pa. 550] Richard A. McDaniel, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah Glass, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant William Bastone was tried by a judge sitting with a jury and convicted of murder in the first [466 Pa. 551] degree. ¹ On this appeal ² he presents five issues which he alleges entitle him to relief: (1) whether the evidence was sufficient to sustain the conviction; (2) whether the trial court properly instructed the jury on the law of felony murder in the absence of a separate felony indictment; (3) whether appellant's cross-examination of a prosecution witness was improperly limited by the trial court; (4) whether the trial court improperly refused one of appellant's points for charge; and (5) whether the trial court's 'prejudicial and hostile' comments prejudiced appellant's trial. We affirm.

I.

At about noon, March 15, 1972, Richard Le Brew arrived at decedent's home and

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told him that he and some friends wished to purchase drugs. Decedent agreed to come to the corner bar for the purpose of selling drugs. Le Brew left the house and went to the corner where, with appellant and John Jefferson, he awaited decedent's arrival.

Decedent arrived a few moments later wearing a black leather coat. Le Brew made his purchase and left the area with Jefferson. Appellant remained behind speaking to decedent. As Le Brew rounded a corner from the street where the bar was located he heard a noise which sounded like a shot. As he turned around to see what had happened, he saw appellant trotting across the street from the area where appellant and decedent had been speaking.

Within a few minutes of the noise, which decedent's mother also heard, decedent returned to his home without[466 Pa. 552] his leather coat and with a gunshot wound of the stomach area. His mother asked him whether Le Brew had shot him. Decedent replied that it had been 'three of them.' Decedent said that he had been robbed.

Decedent's mother asked a neighbor to help her transport her son to a hospital. Decedent and his mother were accompanied to the hospital by decedent's sister-in-law who sat in the back of the vehicle cradling decedent's head in her lap. Decedent's sister-in-law asked him who had shot him. Decedent replied, 'Please tell them to get Billy and Rick.' Decedent again stated that he had been robbed and further stated that he knew he was dying. Emergency surgery at the hospital was unavailing. A medical examiner testified that a gunshot wound was the cause of death.

The police issued arrest warrants for Richard Le Brew and appellant, William Bastone. Le Brew surrendered, but appellant continued to avoid the police. Le Brew's cousin, Donald Wroten, visited appellant during this time. Wroten testified that appellant stated, 'Rick was dumb for turning himself in,' 'he wasn't turning himself in, he wasn't going to jail,' and 'the boy wasn't supposed to die, but he went for his pistol and it was just one of those things.'

The test for the sufficiency of evidence in a criminal case is whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. See Commonwealth v. Green, --- Pa. ---, ---, 347 A.2d 682, 686 (1975); Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975).

[466 Pa. 553] Murder in the first degree under the law applicable to this case is:

'A criminal homicide . . . committed by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing. . . . (and a) criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of . . . (a) robbery.'

Act of December 6, 1972, P.L. 1482, § 1(a) (amended 1974), formerly codified as 18 Pa.C.S.A. § 2502(a) (1973). A person commits a criminal homicide if

'he intentionally, knowingly, recklessly or negligently causes the death of another human being.'

18 Pa.C.S.A. § 2501(a) (1973).

In this case the Commonwealth had to prove either a willful, deliberate or premeditated killing or a felony murder. The evidence introduced at trial supports a felony murder conviction. Decedent asserted that he had been robbed, appellant's statement to Wroten may be understood to indicate that he participated in a robbery-murder, and decedent was not wearing his coat when he returned to his house. These facts, together with decedent's dying declaration implicating appellant and Le Brew,

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were sufficient to enable the jury to find, beyond a reasonable doubt, that appellant was guilty of the first degree murder of decedent.

II.

Appellant next asserts that it was error for the trial court to charge the jury on felony murder in the absence of a felony...