# Commonwealth v. Waters

> Supreme Court of Pennsylvania · July 15, 1980 · 491 Pa. 85

URL: https://www.frixlaw.com/law-library/cases/9713046

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Gary D. WATERS, Appellant; COMMONWEALTH of Pennsylvania, Appellant, v. Gary D. WATERS, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 15, 1980
- **Citations:** 491 Pa. 85; 418 A.2d 312
- **Precedential status:** Published
- **Opinion:** Concurring in part by Flaherty
- **Judges:** Eagen, O'Brien, Roberts, Nix, Larsen, Flaherty
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713046

## How later opinions describe it (automated extraction)

- finding trial court erred in quashing attempted murder charge sua sponte

## Opinion text

*100 FLAHERTY, Justice,
concurring and dissenting.
While I am in accord with majority’s order of a new trial in this case, I cannot agree with the conclusion that the jury instruction on the felony murder rule should include the charge that a defendant may be found guilty of murder of the second degree only if the homicide committed by his accomplice during the perpetration of the felony was “in furtherance of” the felony. I cannot agree that inserting this requirement into the felony murder charge adequately advances the stated policy of this Commonwealth with regard to felony murder liability. Whether the actions are in “furtherance” of the underlying felony unnecessarily clutters the issue.
I am of the opinion that the jury should be charged to the effect that so long as the energy initiating the felonious undertaking continues to pervade the felonious atmosphere created by co-felons, then, any result engendered by that felonious energy is within the purview of the felony murder doctrine and all who participate therein are equally guilty of murder.
As stated in Commonwealth v. Yuknavich, 448 Pa. 502, 508 , 295 A.2d 290, 293 (1972):
The nature of the felony in this case [armed robbery] is such that it should be obvious to anyone about to embark on such a venture that the lives of the victims may be sacrificed in accomplishing the end. A reasonable man can be properly charged with the knowledge that the natural and probable consequences of such an act many well result in death or grievous bodily injury to those involved.
Keeping this view in mind, one can clearly see that the requirement imposed by the majority serves only to create an unwarranted technicality in the law.
A view similar to that expressed in Yuknavich, supra, was set forth in Commonwealth v. Batley, 436 Pa. 377, 391-392 , 260 A.2d 793, 801 (1970):
*101 When one considers all that transpired, it is clear beyond any reasonable doubt that, by common design and plan, Batley, with his companions, all armed, set out on the evening of March 28th to commit robbery and rape; in so doing, Batley assumed the risk that a killing might occur through the acts of one or more of his companions. Frick’s killing was within the orbit of the risk of the venture to which Batley committed himself, and he made no effort whatsoever to withdraw from the venture until after the killing had taken place. (Emphasis supplied).
It is clear from this language that until the venture has ceased and there has been a cut-off in the chain of events attributable to the initial goal of committing the underlying felony, all parties who entered the scheme are responsible for the consequences. It is for the jury to decide whether there has been a cessation of that initial felonious energy thereby terminating liability of any accomplice(s) and I would so charge them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713046. Public record. Not legal advice.