Commonwealth v. Yarnal , 429 Pa. 6 ( 1968 )

Opinion by

Mr. Justice Musmanno,

Robert Yarnal entered a plea of guilty to a charge of murder generally. After hearing evidence, a two-judge court found that Yarnal’s admitted killing of Blair constituted murder in the first degree. Later, Yarnal filed a petition under the Post Conviction Hearing Act alleging denial of right to assistance of counsel to prepare, perfect and execute a direct appeal from his conviction, whereupon he was granted leave to take this appeal.

After Yarnal shot Blair he stole his car. He was convicted and sentenced on a charge of larceny for theft of the car. He now claims that since his conviction was for larceny and not robbery, the theft could not be used to find him guilty of murder during the perpetration of a robbery so as to bring the facts within the felony-murder rule. However, the record reveals that the determination of guilt of murder in the first degree was not based on a finding of murder during perpetration of a robbery, but on the facts which established that Yarnal’s killing of Blair was wilful, deliberate and premeditated murder.

The trial court found that “Robert Virgil Yarnal wilfully and deliberately and premeditatedly, shot and killed Walter Blair; this shooting occurred under such circumstances as rendered such killing completely unnecessary.” The court’s opinion pointed out that Yarnal “deliberately took aim and shot the deceased as he was seated therein, under circumstances which were without any justification or excuse.” Thus, the felony-murder rule was not a factor in the deliberation which resulted in the verdict of murder in the first degree, and thus we find it unnecessary to determine whether the felony-murder rule would have been applicable in view of Yarnal’s prior conviction for the theft of Blair’s automobile as “larceny,” and not robbery.

Nor do we find it necessary to determine whether the Court improperly permitted the sheriff to testify to Yarnal’s reenactment of the crime, this occurring when Yarnal had no counsel.^* The testimony of other witnesses was more than legally sufficient to support the court’s finding that Yarnal’s killing of Blair was wilful, deliberate and premeditated murder, necessitating no reliance on the testimony of the sheriff as to Yarnal’s reenactment of the crime. Yarnal urges that these witnesses had “an axe to grind,” but their credibility was a matter for the court’s determination.

The evidence more than adequately establishes that Yarnal’s crime came within the provisions of the Act of June 24, 1939, P. L. 872, §701, as amended, 18 P.S. §4701, which declares that “All murder which shall be perpetrated by means of poison, or lying in wait, or by any other hind of wilful, deliberate and premeditated hilling . . . shall be murder in the first degree

We find in the record no prejudicial error entitling Yarnal to a rehearing.

Judgment affirmed.

Mr. Justice Cohen and Mr. Justice Eagen concur in the result.

* It is apparently admitted by Yarnal that he was advised by the district attorney while en route to the scene that he was not required to tell anything or show anything; and if he did, this could be used against him in court. Also, that he was at that time asked whether or not he had counsel to which he responded that he was going to have an attorney.