Com. v. Thomas

Decision Date19 March 1963
Citation410 Pa. 160,189 A.2d 255,5 A.L.R.3d 879
Parties, 5 A.L.R.3d 879 COMMONWEALTH v. Robert W. THOMAS, Appellant.
CourtPennsylvania Supreme Court

Joseph N. Bongiovanni, Jr., Frederick F. Blumberg, Philadelphia, for appellant.

Arlen Specter, Asst. Dist. Atty., Burton Satzberg, Asst. Dist. Atty., F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.


JONES, Justice.

The factual background of the homicide which resulted in the conviction of Robert W. Thomas of murder in the first degree with the penalty fixed at life imprisonment is set forth at length in Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234, Commonwealth v. DeMoss, 401 Pa. 395, 165 A.2d 14 and Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640. Except as relevant and pertinent to the issues raised on this appeal, such background need not be herein recited.

The theory of the Commonwealth was that Thomas, a deputy sheriff of Dade County, Miami, Florida, became acquainted with Mrs. Lulubel Rossman [the deceased] when she enlisted the aid of Thomas' fellow deputy to check on the activities of a man with whom she thought herself to be amorously involved. Through such acquaintanceship, Thomas learned that deceased was in the habit of having large sums of money on her person and in her living quarters. The Commonwealth sought to prove that Thomas conceived the idea of robbing the deceased and to that end, through numerous telephone calls between Florida and Oklahoma and personal meetings in Florida and Oklahoma, formed a conspiracy with Gus DeMoss, Raymond Wilson and Frank Ellsworth; 1 in furtherance of that conspiracy, Wilson and Ellsworth went to Philadelphia and, on July 3, 1955, entered the deceased's room in the Adelphia Hotel where they robbed her of a large sum of money; in the course of that robbery, the deceased met her death. 2 There is no doubt that the plan and all the details of the conspiracy, insofar as Thomas is involved, were formulated outside Pennsylvania, that only Wilson and Ellsworth were in Pennsylvania when the felony murder took place and that Thomas was never in Pennsylvania until he surrendered for trial.

Thomas was indicted on the charges of conspiracy and murder. After a trial in the Courts of Oyer and Terminer and Quarter Sessions of Philadelphia County before a court and jury, Thomas was found guilty both of conspiracy and of murder in the first degree with the penalty fixed at life imprisonment. A nolle pros was entered on the conspiracy charge and Thomas was sentenced on the murder charge. From the judgment of sentence, Thomas has taken this appeal.

Thomas' contentions are three-fold: (a) since the proof of the Commonwealth is that the conspiracy between Thomas, De-Moss, Wilson and Ellsworth which resulted in the felony murder was formed and plotted entirely outside Pennsylvania and since Thomas had never been within Pennsylvania, the Pennsylvania courts lacked to try them for murder even though the felony murder had taken place in Pennsylvania; (b) the testimony of certain witnesses was improperly received in evidence; (c) the charge of the trial court placed undue emphasis upon the Commonwealth's testimony, misquoted certain evidence and permitted the jury to speculate.

In respect to the first contention, it is argued that the Pennsylvania courts lacked extra-territorial jurisdiction to try him for a crime which took place in Pennsylvania from which state he was physically absent at the time. 3 Since there is no statute which gives such jurisdiction, jurisdiction, if it does exist, must arise from the common law.

It is well settled that within the Commonwealth '* * * prosecution for criminal conspiracy may be brought in the county where the unlawful combination or confederacy was formed, or in any county where an overt act was committed by any of the conspirators in furtherance of that unlawful combination or confederacy': Commonwealth v. Mezick, 147 Pa.Super. 410, 413, 24 A.2d 762; Commonwealth v. Bartilson et al., 85 Pa. 482, 489; Commonwealth v. Barnes, 107 Pa.Super. 46, 59, 162 A. 670; Commonwealth v. Spencer et al., 6 Pa.Super. 256, 268-289.

Does the same rule apply where a conspiracy is formed without the Commonwealth and an overt act in furtherance of that conspiracy takes place within the Commonwealth? In resolving this question, we first must examine the legal responsibility which the law attaches to one who enters into a criminal conspiracy. Where the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators if such acts are done in pursuance of the common design or purpose of the conspiracy. Such responsibility attaches even though such conspirator was not physically present when the acts were committed by his fellow conspirator or conspirators and extends even to a homicide which is a contingency of the natural and probable execution of the conspiracy, even though such homicide is not specifically contemplated by the parties (Commonwealth v. Spardute, 278 Pa. 37, 50, 122 A. 161).

In Commonwealth v. Burdell, 380 Pa. 43, 49, 110 A.2d 193, 196, this Court said: 'It is hornbook law that a conspirator is criminally responsible for the acts of his co-conspirator which are committed in furtherance of the common design even though he was not present when the acts were committed. Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79; 15 C.J.S. Conspiracy, § 74, p. 1105. It was said by Chief Justice Gibson in Rogers v. Hall, 4 Watts 359, 361, that 'the least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all.'' In Commonwealth v. Doris, 287 Pa. 547, 550, 135 A. 313, 314, we said: 'There can be no question of the legal responsibility of the accomplice for the act committed by his coconspirators while the crime agreed upon is in the course of preparation, for he is criminally liable for the natural consequences of the acts of his fellows under such circumstances. Where the parties by their conduct, show the intention to use such force as is necessary to accomplish their purpose, and in furtherance of the common design another is killed, each is guilty of the crime. [citing cases]'. See also: Collins v. Commonwealth, 3 S. & R. 220; Commonwealth v. Spardute, supra; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A.2d 733; Commonwealth v. Rhey et al., 140 Pa.Super. 340, 350, 351, 14 A.2d 192; Commonwealth v. Jackson, 187 Pa.Super. 2, 144 A.2d 249; Commonwealth v. Whalen (No. 1), 189 Pa.Super. 351, 356, 357, 150 A.2d 133.

The determination of jurisdiction over Thomas in the case at bar must rest upon this theory of vicarious criminal responsibility which arises out of the existence of the conspiracy. The conspiracy in which Thomas took part had as its goal and objective the robbery of the deceased, a robbery which was to take place in Pennsylvania wherein the deceased was a resident; as a conspirator, Thomas became criminally responsible for the acts of his fellow conspirators, Wilson and Ellsworth, which acts were committed in Pennsylvania, and such responsibility included not only the robbery--the objective of the conspiracy--but also the homicide which was a contingency of the natural and probable consequences of the robbery. Such criminal responsibility attached to Thomas even though he was not physically present in Pennsylvania when the robbery and homicide occurred; in the eyes of the law, Thomas, as a conspirator, was constructively present when the robbery and the homicide occurred.

In Commonwealth v. Gillespie, 7 S. & R. 469, the defendant had conspired with another person in New York to sell lottery tickets in Pennsylvania, wherein such sales were illegal, and the defendant, who had not been in Pennsylvania, supervised the sale of the lottery tickets in Pennsylvania and the question arose as to whether Pennsylvania had jurisdiction to try the defendant. This Court said: '* * * if the parties are linked in one community of design and of interest there can be no good reason why both may not be tried where one distinct overt act is committed, for he who procures another to commit a misdemeanor is guilty of the fact in whatever place it is committed by the procuree.' (p. 477). Very recently, the Superior Court in Commonwealth v. Prep, 186 Pa.Super. 442, 451, 142 A.2d 460, 465, stated: 'It is a well established theory of the law that, where one puts in force an agency for the commission of the crime, he, in legal contemplation, accompanies the same to the point where it becomes effectual; consequently, in many circumstances one may become liable to punishment in a particular jurisdiction while his personal presence is elsewhere, and in this way he may even commit an offense against a state or county upon whose soil he has never set foot.' (emphasis supplied).

Other jurisdictions recognize the existence of such jurisdiction. In United States v. Johnston, 227 F.2d 745, 747, the Court of Appeals for the Third Circuit, speaking through Judge Goodrich, said: 'It is well established that one does not have to be physically present in a state to be guilty of a criminal offense there. The standard illustration, familiar to every law student, is that of shooting across a state boundary line and hitting a victim in the second state. The offense is complete where the fatal force hits the victim and the defendant may be prosecuted for homicide there if jurisdiction can be obtained over his person.' The United States Supreme Court in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, said: 'Acts done outside a jurisdiction but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had...

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