Commonwealth v. Lowry

• Decision Date: 26 June 1953
• Citation: 374 Pa. 594,98 A.2d 733
• Parties: COMMONWEALTH v. LOWRY.
• Court: Pennsylvania Supreme Court

98 A.2d 733

374 Pa. 594

COMMONWEALTH v. LOWRY.

Supreme Court of Pennsylvania.

June 26, 1953

Rehearing Denied Aug. 22, 1953.

Defendant, who was allegedly driver of automobile in which others who committed murder in the course of an attempted burglary, made their get-away, was convicted of first degree murder. The Court of Oyer and Terminer and General Jail Delivery, Bucks County, December term, 1950, No. 55, Hiram H Keller, P. J., entered judgment accordingly, and the defendant appealed. The Supreme Court, January term, 1953 No. 92, Bell, J., held that evidence was sufficient to justify verdict.

Judgment affirmed.

Harry R. Back and Back & Levy, Philadelphia, for appellant.

Willard S. Curtin, Dist. Atty., and Donald W. VanArtsda len, First Asst. Dist. Atty., Doylestown, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL Justice.

Was the defendant, the driver of the alleged get-away car, properly convicted of first-degree murder?

On the evening of May 19, 1950, at approximately 9:15 p. m., Chapasco and Pearson went to the Safe Food Market in Bristol Township for the purpose of committing a robbery, lurked behind a building, and being discovered, seized the owner and two employees of the market, lined them up along the wall of the building, struck and knocked them to the ground. Pearson shot and killed Sklar while he was lying on the ground; Chapasco misfired and dropped his gun. They ran from the scene to the front of the building on Bristol Pike, jumped into Chapasco's car, which was driven by the defendant who lived in and was familiar with that neighborhood, and he drove them with his lights out, rapidly away toward Philadelphia. Prior to the holdup, he had been seen frequently in the vicinity of the market.

The evidence of the defendant's participation in the robbery and subsequent murder was entirely circumstantial and consisted of the following evidence which defendant contends is inadequate to convict him of first-degree murder or of any criminal offense.

Irrespective of defendant's evidence (in this case he did not take the witness stand), ‘ [a]fter a plea or verdict of guilty, 'we accept as true all of the commonwealth's evidence upon which if believed, the jury could have properly based its verdict. Commonwealth v. Blanchard, 1942, 345 Pa. 289, 296, 26 A.2d 303, 306,27 A.2d 48. * * *’ Commonwealth v. Logan, 361 Pa. 186, 192, 63 A.2d 28, 30, supra [and numerous cases cited therein].' Commonwealth v. Phillips, 372 Pa. 223, 227, 93 A.2d 455, 457.

Pearson and Chapasco were convicted of first-degree murder. After being informed that Pearson had confessed, defendant, a few hours later, wrote out in longhand the following statement in the police station, There is no contention that the statement was not voluntarily made. It read as follows:

‘ friday evening 19th of May Sept. 8th 1950

‘ I John Lowry do write this Statement of my own free will. One week before this happened Martie & Harry came to my place of employment and asked me if the Supermarket in Croyden had any money. I told them to get out of here before I call the cops. Then they left in a Hudson Sedan. The following Friday nite around 8.30 P.M. I were driving home from my place of employment and In Croydon Pa. I meet These two men, Harry & Martin. They told me they were looking for some one and asked me if I would drive them around town. So I drove them up State Rd. & over Cedar Ave. to Bristol Pike. Then Harry told me to turn in this Street. I believe it is Hillcrest ave we drove down there to Newportville Rd, there he told me to turn to the left when we get to Clover Ave he said left here when we got to Clover Ave about 100 yards from the corner he said (‘ Harry’ ) park here and we will walk up to the corner. [Where the market was located.] I sat there for about 20 minutes then I drove up to the intersection. The first thing I knew they Harry & Martie came running acrost the Pike and jumped into the car and Harry said get going we just had a fight. I still didn't know what they had done. I drove the car to city line and I left them there. Later on that nite I heard they shot a man. I didn't know what to do. I had no knowledge that they were planing to hold up anyone I went home. The police arrested me, And they made no promisee to me. I write this of my own free will.

‘ John Lowry.’

It is evident from the statement that defendant knew that the reason Chapasco and Pearson asked him if the Super-market in Croydon had any money was because they wanted to rob the place, otherwise he would not have said if they did not get out he would call the cops. Notwithstanding this, one week after that conversation Pearson and Chapasco just happened to drive past defendant who was motoring home in his car. They asked him (so he said) to drive them to a point about 100 yards from the Super-market which a week earlier they had indicated they wanted to rob, and to park there while they walked to the corner where the Supermarket was. Defendant waited for about 20 minutes and then, without any explanation or reason, he just drove up to the intersection across from the Supermarket on the corner of Bristol Pike, and Pearson and Chapasco just happened to come running across the Pike and jumped into the car and told him to go ahead quick as they had just had a fight. Defendant would have the jury and this Court believe that he did not know what his companions had done or had intended to do, and he never found out until later that evening. This implausible story is rendered more implausible by the fact that defendant turned out the lights when he started to pick them up, and with lights out drove the car rapidly away from the scene of the murder. Those are not the actions of an innocent man. After he left the car and his companions at the outskirts of Philadelphia, defendant fortyfive minutes later returned to the scene of the crime and went into a diner directly across from the Super-market. In the diner the defendant talked to a waitress, rubbed his eyes, told her he had been in bed and had come down to see what was causing the excitement. This statement was untrue in the light of his written statement, and the jury could justifiably have believed that it was merely an attempt to divert suspicion, or to establish a possible alibi. The waitress told defendant that the men would get caught, whereupon he asked her whether she had seen them. After she said no, he asked her whether anybody saw them and recognized them. Moreover, when another waitress (perhaps imprudently) said that she had seen the car, defendant told his waitress, ‘ You are a smart girl, Pat, to keep your mouth shut.’

Defendant's contention that his were the actions and conduct of an innocent man who had no knowledge that his companions had planned and were about to engage in the commission of a robbery and their subsequent precipitous flight was merely because they had had a fight unduly strains our credulity. However, the question still remains whether the Commonwealth's evidence is adequate to prove beyond a reasonable doubt that defendant was a participant in the planned robbery and hence guilty of murder in the first degree.

Where a killing occurs in the course of a robbery, all who participate in the robbery including the driver of the get-away car are equally guilty of murder in the first degree even though some one other than the defendant fired the fatal shot. Commonwealth v. Robb, 284 Pa. 99, 130 A. 302; Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A.2d 736; Commonwealth v. Hough, 358 Pa. 247, 56 A.2d 84; Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A. L.R.2d 183; Commonwealth v. Thomas, 357 Pa. 68, 53 A.2d 112; Blackstone, Book 4, pages 192, 193.

In Commonwealth v. Thomas, 357 Pa. at page 72, 53 A.2d at page 114, supra, the law is thus stated: ‘ We said in Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75, 79:‘ One is an aider and abettor in the commission of any crime, i. e., ‘ he has joined in its commission’ if he was an active partner in the intent which was the crime's basic element. * * * ‘ The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all.’ * * * when two or more persons conspire or combine with one another to commit any unlawful act, each is criminally responsible for the acts of his associate or confederate committed in furtherance of the common design. In contemplation of law the act of one is the act of all.''

It is well established that the commission of or participation in a crime may be proved by circumstantial evidence. Commonwealth v. Wentzel, 360 Pa. 137, 61 A.2d 309; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743; Commonwealth v. Thomas, 357 Pa. 68, 53 A.2d 112,supra; Commonwealth v. Palermo, 368 Pa. 28, 31, 81 A.2d 540; Commonwealth v. Karmendi, 328 Pa. 321, 333, 195 A. 62.

In Commonwealth v. Robb, 284 Pa. 99, 130 A. 302, 303 the defendant was indicted and convicted of murder. He was a lookout and had nothing to do with the burglary or the murder. The Court said: ‘ If defendants-‘ combine to commit a felony or make an assault, and in carrying out the common purpose another is killed, the one who enters into the combination but does not personally commit the wrongful act is equally responsible for the homicide with the one who directly causes it.’ Commonwealth v. Micuso, 273 Pa. 474, 478, 117 A. 211, 212.‘ It is not necessary, however, to prove that the party actually aided in the commission of the offense; if he watched for his companions, in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to...