Commonwealth v. McCleary

NIX, Justice,

dissenting.

I agree with the majority that if the appellant had only aided and abetted in the flight after the felony and the *601murder had been completed, appellant could not be held responsible for the death under a theory of accomplice liability. I disagree, however, with the majority’s conclusion that the judge’s comments permitted the jury to conclude that they could hold appellant criminally responsible for the death without a finding that he was an accomplice to the burglary. The understanding which flows from a reading of the supplemental charge as a whole is that the jury must first find the appellant intended to promote or facilitate the burglary before the theory of accomplice liability may be applied.1 The trial judge instructed the jury on the requisite element of appellant’s alleged knowledge that a burglary would be afoot after appellant and Sanabria delivered Myers to the victim’s house. It was the injection of this culpable knowledge in the supplemental charge in combination with the act of picking up Myers from the victim’s house indicating his intent to facilitate the crimes that provided a basis upon which to find accomplice liability.

During their deliberations, the jury submitted three questions, the first two of which are relevant to this analysis.

Number one:

“If the Defendant did not know, up to the moment Myers got out of the car with the tire iron that burglary was to be perpetrated, could he be considered as an accomplice?” (Emphasis added).

Number two:

“What was the Defendant’s responsibility at this point to present [sic] a burglary to keep from being involved as an accomplice?”2

*602The following is the relevant excerpt from the supplemental charge in response to questions one and two.

“Ladies and gentlemen, if the Defendant didn’t know until the moment that Myers got out of the car that there was a burglary afoot, then up to that point he should not be considered an accomplice, and as of that moment, would not be under the Felony Murder Doctrine or the theory of accomplice as previously explained, responsible for the events that then transpired.
Now, the question then becomes, let’s assume that this happened at 2 o’clock in the morning. He is not involved and responsible as a result of what happened up until 2 o’clock, the Defendant is not involved. The answer, then, becomes well what happened after that? And you would then apply the same definition of an accomplice to circumstances that followed that 2 o’clock assumption. You would have to look very carefully at what did or did not happen after that. He is not in the picture as an accomplice to the time up until then, because he didn’t know anything about it. Okay, then what about afterwards? Well, the fact is of course for you to decide, but to be of some help, perhaps, I think I will comment further. You would have to decide whether what happened after that, what he did after that, was that aiding or abetting the committing of the offense in some way. Did he after that aid or agree to aid or attempt to aid Myers in carrying out the specific burglary that you may find did occur. Well, the law says that mere presence alone is not enough. Therefore, but I think it would also be true that mere presence, if you were not dealing with mere presence, happenstance that he’s there, but if you should find that the Defendant sort of added his body to the events, that he strengthened the resolve, you know, ‘I’m right behind you, Myers,’ type of situation, so that his presence was more than just a mere coincide [sic], but was an element of support, you could or could not say that this is an aiding or abetting. You have to look at all the circumstances. You would have to determine whether the Defendant did *603or did not indicate that he would watch out for Myers, and if he did, when did he do it? If that was all said before this magic 2 o’clock, then I say again it wouldn’t be an element that would bring him into this picture, but if he said that and he said it after he had knowledge that a burglary was afoot, then you could consider that, or you could not consider that as an indication that he was aiding or abetting the felony, because now he knows about it, and is saying I will look out for you. In that context you have to consider what — thinking and talking about what happened after the 2 o’clock, our assumed hour, you would have to analyze the testimony about meeting Myers and taking him back to York, was that a coincide [sic]? Was that something that McCleary didn’t know about, that was arranged between Myers and Sanabria? Or ishe [sic] in some way involved in the returning transportation, and is that an aiding or abetting of the offense, which at this point, according to the assumption of your question, he has something to — he has information about.
So I am saying in possibly a long winded way, I hope it’s not confusing, I hope I’m putting it more specifically in the context of the case, and all these factual determinations are entirely up to you. I am saying a short answer is that he didn’t know until Myers got out of the car, he is not responsible for anything that happened up until that point in time, and the task is, then, to apply this aiding or abetting language, which is the key of being an accomplice, if he aids or abets with the intent of facilitating the crime, apply that to what happened thereafter. If you find that thereafter all he did was get out of there, did not aid, agree, or attempt to aid, and that whatever he did was with no intent of promoting this offense, then he would not be responsible for the conduct of Myers.”

By pointing out the necessity of the element of intent to promote or facilitate the burglary, knowing that Myers was armed, it cannot be said that a “reasonable understanding” of the charge as a whole was that merely picking up Myers from the scene of the crimes would be sufficient to conclude *604appellant was an accomplice and, therefore, criminally responsible for the death.

I would affirm the judgment of sentence.

. The charge must be read as a whole on appeal in order to determine its effect and portions should not be taken out of context. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972).

. The third question requested an explanation of what constitutes third degree murder.