Com. v. Olds, 641

• Decision Date: 02 February 1984
• Docket Number: No. 641,641
• Parties: COMMONWEALTH of Pennsylvania v. Richard Lee OLDS, Appellant.
• Court: Pennsylvania Superior Court

Page 1072

469 A.2d 1072

322 Pa.Super. 442

COMMONWEALTH of Pennsylvania v. Richard Lee OLDS, Appellant.

No. 641.

Superior Court of Pennsylvania.

Argued May 24, 1983.

Filed Nov. 25, 1983.

Reargument Denied Feb. 2, 1984.

John A. Halley, Pittsburgh, for appellant.

Kenneth J. Benson, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before CAVANAUGH, ROWLEY and CIRILLO, JJ.

CIRILLO, Judge:

Appellant Richard Lee Olds was tried before the Honorable Samuel Strauss and a jury in Allegheny County and was convicted of second degree murder, robbery and conspiracy in the shooting death of Thomas Beitler. Post-trial motions were denied and appellant was sentenced to life imprisonment. Several issues are raised in this appeal.

Appellant first contends that the trial court erred in failing to grant a demurrer at the close of the Commonwealth's case. Because appellant's counsel did not rest following the adverse ruling on the demurrer but instead presented a case in defense, a challenge to the correctness of this ruling on appeal can be considered only as a challenge to the sufficiency of the evidence as a whole. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). The verdict winner is entitled to the benefit of all reasonable inferences upon which a jury might have relied, and resolution of factual conflicts will not be disturbed on appeal as long as there is support in the record for the verdict. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983).

Reviewed in this light, the record reveals that on the night of October 9, 1979, Claude Bonner, Roderick Todd Allen, and Richard Lee Olds were riding around Pittsburgh, Pennsylvania in Claude Bonner's car. Bonner asked Allen if he had a pistol and suggested robbing the Fort Wayne Cigar Store, an all-night general store in the vicinity. Allen responded by pointing a pistol at Bonner and saying, "You just get a person coming off down the street."

At some point after this, Olds told Bonner that he was hungry and wanted to get something to eat. Bonner then drove to the Fort Wayne Cigar Store and parked in a side street. Olds got out of the car, followed closely by Allen, who said on his way out, "I'm going to rob the store." Olds's reply to this was "Yeah, right."

The two young men entered the store together and Olds walked to the back to purchase a bag of potato chips. Allen remained standing by the door until Olds reached the register. Allen then made an unintelligible remark to Olds and walked out the door, immediately preceded by Thomas Beitler, the only other customer in the store.

Eric Shaerer, who was alerted by a shot as he was walking toward the Fort Wayne Cigar Store, saw no one other than Allen and Beitler in the vicinity. Beitler was holding his wallet out toward Allen saying, "Here, take my wallet." Allen then fired two more shots, point blank, and Beitler staggered backward into the Fort Wayne Cigar Store, still holding the wallet.

Claude Bonner pulled out to drive away after hearing the first shot, but was prevented from leaving when Olds ran out in front of the car. Olds and Allen then got back into the car. After they were both inside Allen said to Olds, "It was your fault I shot him." Olds denied this and Allen continued, "You was supposed to grab the wallet," to which Olds made no further response. Taking a circuitous route to avoid the police, Bonner then dropped both boys off together near Olds's house.

Olds was convicted under Pennsylvania's felony-murder statute, which defines as second degree murder a criminal homicide which "is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa.C.S. § 2502(b). "Perpetration of a felony" is further defined in this section as, "The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping." 18 Pa.C.S. § 2502(d).

Appellant challenges the evidence in two respects. His first assertion is that the record will not support a finding that he possessed the requisite intent to commit robbery. Since there is no evidence that appellant participated directly in either the robbery or the murder, the validity of these convictions depends upon his responsibility for acts done in furtherance of an alleged conspiracy. See Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The existence of such a conspiracy is dependent upon proof of an agreement, or common design, to commit the unlawful act of robbery. Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979); Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982). See also 18 Pa.C.S. § 903. Direct proof of an agreement is not required; the conduct of the parties and the circumstances surrounding such conduct may be sufficient to establish an inference of common design. Commonwealth v. Sadusky, supra; Commonwealth v. Stasiak, supra.

Appellant relies on Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975) and Commonwealth v. Mitchell, 270 Pa.Super. 146, 411 A.2d 221 (1979) for the proposition that neither mere presence at the scene of a crime nor mere association with a perpetrator is sufficient to infer participation in the crime or in a plan to commit the crime. This is an accurate statement of the law; however, more than mere presence or association has been shown here. A common design to commit the underlying felony of felony-murder may be inferred from the circumstances or acts committed either before or shortly after the slaying. See Commonwealth v. Bachert, supra.

Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Commonwealth v. Carter, 272 Pa.Super. 411, 416 A.2d 523 (1979).

Commonwealth v. Lamb, --- Pa.Super. ---, 455 A.2d 678, 685-86 (1983). In addition, acts of a co-felon as well as acts of a defendant himself may be considered to establish such an inference. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). It is especially significant that the three participants arrived at the scene together and left together after the crime had been committed. See Commonwealth v. Carter, 271 Pa.Super. 492, 414 A.2d 361 (1979). We find, therefore, that the jury in this case was entitled to conclude that appellant was aware of an incipient robbery and performed acts evidencing an agreement to participate therein. Cf. Commonwealth v. Crow, 303 Pa. 91, 154 A. 283 (1931). "The least degree of concert or collusion is sufficient to sustain a finding of responsibility as an accomplice." Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981). Nor is it relevant whether the plan was to rob the store or to rob a pedestrian outside the store. A common purpose of robbery is enough. Commonwealth v. Tate, supra.

Appellant's next contention is that, even given the existence of a conspiracy to rob, he cannot be held guilty as an accomplice to felony-murder because the evidence is insufficient to show that the act of Todd Allen in killing Thomas Beitler was performed in furtherance of such a conspiracy.

Under the common law doctrine of felony-murder as applied in Pennsylvania, "the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony." Commonwealth v. Tarver, 493 Pa. 320, 328, 426 A.2d 569, 573 (1981), quoting Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 225, 261 A.2d 550, 553 (1970). In recent years, this doctrine has come under close scrutiny in Pennsylvania as well as in other states, apparently from a sense tht it operates unjustly in certain circumstances. See generally, Annot. 13 A.L.R. 4th 1181 (1982). The requirement that the conduct causing death be in furtherance of the design to commit the underlying felony has received particular attention. In Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), the Pennsylvania Supreme Court held that the felony-murder rule would not operate to hold a defendant responsible for the death of a co-felon who was shot by police while attempting to flee from the scene of a crime. The rationale was that such killing was merely coincidental with the felony rather than the result of an act committed in furtherance thereof. In Commonwealth ex rel. Smith v. Myers, supra, the same rationale was applied to find that a felon was not responsible for the death of an innocent bystander who was killed by an officer in pursuit of the felon. More recently, in Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152 (1980), it was held that a killing could not be felony-murder where the intent to commit the underlying felony was not formulated until after the conduct causing death had occurred. The court reasoned that since there was no involvement in a dangerous felony at the time of the killing, it could not be said that "the actor knew or should have known death might occur from involvement in a dangerous felony." Id. at 82, 417 A.2d at 1154.

Finally, the case of Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980), upon which appellant relies, supports the proposition that even where two felons have been acting in concert and are still at the scene of a crime, one felon will not be charged with imputed malice where the homicidal act of his co-felon was not directed...