Com. v. Prosdocimo

• Decision Date: 17 August 1990
• Citation: 578 A.2d 1273,525 Pa. 147
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. William PROSDOCIMO, Appellee.
• Court: Pennsylvania Supreme Court

Page 1273

578 A.2d 1273

525 Pa. 147

COMMONWEALTH of Pennsylvania, Appellant, v.William PROSDOCIMO, Appellee.

Supreme Court of Pennsylvania.

Argued May 8, 1990.

Decided Aug. 17, 1990.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Dara A. DeCourney, Scott A. Bradley, Dep. Dist. Attys., Pittsburgh, for appellant.

Vincent R. Baginski, Pittsburgh, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This appeal raises the issue of the propriety of the jury instructions on felony-murder and robbery at William Prosdocimo's trial.

Prosdocimo was one of several people tried for participation in the murder of Gary DeStefano on June 14, 1979.Prosdocimo and the victim, along with a number of other people, were engaged in transporting illegal drugs from Florida and selling them in western Pennsylvania.Prosdocimo and others conceived a plan whereby they would steal drugs brought into Pennsylvania by Gerald Walls and DeStefano; during the execution of the plan, DeStefano was shot in the face and killed by co-conspirator Robert Bricker.On May 22, 1985, Prosdocimo was convicted by a jury of second-degree murder, and was eventually sentenced to life imprisonment.On appeal, a divided panel of the Superior Court reversed the judgment of sentence and awarded Prosdocimo a new trial, holding that confusing and incorrect jury instructions on felony-murder and robbery prejudiced Prosdocimo and constituted reversible error.¹Commonwealth v. Prosdocimo, 375 Pa.Super. 622, 541 A.2d 32(1988).We allowed the appeal of the Commonwealth in order to review the jury charge and to determine whether the relief awarded by the Superior Court is necessary and proper.

The crux of the Superior Court holding is that the trial judge's instructions interchanged the legal definitions of robbery and theft in such a way as to confuse the jury and permit the jury to convict Prosdocimo of felony-murder if he participated in a theft, whereas the law requires that felony-murder be predicated on one of several enumerated felonies, including robbery but excluding theft.The Commonwealth, as appellant, challenges this holding, claiming instead that the jury instructions were not incorrect or misleading, and that they were no more complicated than necessary in view of the complexity of the law of felony-murder.

When evaluating jury instructions, the charge must be read as a whole to determine whether it was fair or prejudicial.The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70(1983).The entire charge given by the trial court on felony-murder was as follows.

The first degree of homicide which you must consider is second degree murder, which is commonly referred to as felony murder.It is commonly called felony murder because it involves a killing incidental to another felony.You may find the Defendant guilty of second degree murder if you are satisfied that the following elements have been proven beyond a reasonable doubt: First, that Gary DeStefano is dead; second, that the Defendant or an accomplice of the Defendant killed him; third, that the killing was committed while the Defendant or an accomplice was engaged in the commission of the felony of robbery; fourth, that the act of the Defendant or his accomplice that killed Gary DeStefano was done in furtherance of the felony of robbery; and finally, that the killing was with malice on the part of the Defendant and/or his accomplice.Like all murders, second degree murder requires malice.But malice is presumed or may be inferred if a Defendant engaged or was an accomplice in the commission of a felony dangerous to human life, such as robbery.No other proof would be necessary under the circumstances.For persons to be accomplices in committing or attempting to commit a felony, they must have a common design, in other words, a shared intent to commit that felony.

Now I will define the felony of robbery for you.In order to find that the Defendant was an accomplice or a party to, that is he shared a common intent in the commission of the crime of robbery, you must be satisfied that the following elements have been demonstrated: First, that the Defendant or his accomplice inflicted or threatened to inflict serious bodily harm to Gary DeStefano during the commission of a felony, and that felony would be theft.Secondly, that the Defendant did so in committing a theft, or that his accomplice did so in committing a theft.Now, serious bodily injury is injury which creates a substantial risk of death, or which causes serious permanent disfigurement or permanent loss or impairment of the function of any bodily member, and clearly death would meet the definition of serious bodily injury.For the purposes of the crime of robbery, a Defendant's act is in the course of committing a theft not only if it occurs in the actual commission of a theft, but if it occurs in an attempted theft.As I have indicated, in order to conclude that a robbery was contemplated here, you must be satisfied beyond a reasonable doubt that the Defendant or his accomplice committed a theft or attempted to commit a theft.A person commits a theft if he unlawfully takes movable property of another with the intent to permanently deprive him of that property.A person attempts to commit a theft when, with the intent to commit a theft, he does an act which constitutes a substantial step towards the commission of a theft.

To summarize, in order to find the Defendant guilty of second degree murder, you must be satisfied that the murder occurred during the course of a robbery, which would include an intent to permanently deprive somebody of property belonging to another, and that the Defendant did, either directly or as an accomplice, in the commission of that offense.²

This charge reflects that felony-murder is committed during a felony such as robbery, which must be defined, and reflects that robbery includes theft, which must also be defined.

The Superior Court stated that the trial court"contradicted itself by confusing the terms of theft and robbery," and "apparently used the term 'theft' interchangeably with the term 'robbery' and it is unclear whether the jury was aware of the legal distinctions between these two terms."That court noted:

The distinction becomes even more crucial when it is noted that [Prosdocimo's] defense consisted of showing that [Prosdocimo's] participation was limited to a plan of theft of an unoccupied car.[Prosdocimo] was prejudiced by the confusing jury charge because it diminished the jury's capacity to distinguish between the elements of theft and felony-murder.

This conclusion was drawn from the trial court's definition of robbery: "First, that the Defendant or his accomplice inflicted or threatened to inflict serious bodily harm to Gary DeStefano during the commission of a felony, and that felony would be theft."

The quoted portion of the charge is not incorrect, nor is it confusing.The underscored words "felony, and that felony would be" are surplusage, but, with or without those excess words, the instruction is correct.The deletion of six words would have little, if any, impact on the entire five hundred fifty-word charge considered as a whole.The Superior Court apparently misread the charge as substituting theft for robbery as the underlying felony in the felony-murder statute, and stated that "we cannot conclude that the jury understood the distinction between robbery and theft."We reject this analysis, however.The trial court instructed the jury four times during its charge that the...