Commonwealth ex rel. Smith v. Myers - 438 Pa. 218, 261 A.2d 550 (1970)

Rule:

In order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking.

Facts:

Appellant participated in a robbery during which an off-duty policeman was killed while trying to intervene. Appellant was convicted of first-degree murder at a trial in which the jury was told that it was irrelevant who fired the fatal bullet. Many years later, appellant petitioned for a writ of habeas corpus. The court below held that appellant had waived his right to appeal and did not pass on the other questions raised. Appellant sought review. 

Issue:

1. Did the appellant knowingly waive his right to appeal? 
2. Under the circumstances, could the appellant be convicted of first-degree murder? 

Answer:

1) No. 2) No.

Conclusion:

On appeal, the court reversed, granted the writ, allowed an appeal nunc pro tunc, and granted a new trial. The court held that whether appellant's failure to appeal resulted from his fear of receiving the death penalty on retrial or from his lack of knowledge of appeal rights, his waiver was not knowing or voluntary. The court overruled Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (1949), in which it had held that appellant's co-felon could be found guilty of murder even though the fatal bullet was fired by another officer acting in opposition to the felony. The felony-murder rule in Pennsylvania required that the killing must have been done by the defendant or an accomplice in the furtherance of a felony. Thus, appellant was entitled to a new trial.