Pennsylvania does not allow felony murder when a co-perpetrator is killed by a victim or third party

PENNSYLVANIA — Not allowing a felony murder charge when a co-perpetrator is killed by a victim or third party is established in case law.

§ 2502.  Murder.

(a)  Murder of the first degree.–A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

(b)  Murder of the second degree.–A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

(c)  Murder of the third degree.–All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.


In the Thomas case, the defendant was held answerable to an indictment for murder for the killing of his accomplice by the victim of their robbery, the malice requisite being imputed because of the defendant’s contemporaneous participation in the initial felony. The conclusion reached in the Thomas case was a further extension of the felony-murder doctrine as applied in Commonwealth v. Almeida. The opinion for the court in the Thomas case relied for its principal authority on the decision in Almeida and also cited the more recent case of Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464. But, Bolish is plainly distinguishable from Almeida, while the instant case, whose operative evidential elements are basically similar to those of the Thomas case, is distinguishable from both Almeida and Bolish. The decision in theAlmeida case was a radical departure from common law criminal jurisprudence; and the ruling should not be extended by still further judicial enlargement. A review of relevant authorities will so confirm.

The only constitutional power competent to define crimes and prescribe punishments therefor is the legislature, and courts do well to leave the promulgation of police regulations to the people’s chosen legislative representatives. No killing under circumstances such as the instant case presents had ever before been declared murder in this State prior to the ruling in Commonwealth v. Thomas, supra. If predominant present-day thinking should deem it necessary to the public’s safety and security that felons be made chargeable with murder for all deaths occurring in and about the perpetration of their felonies — regardless of how or by whom such fatalities came — the legislature should be looked to for competent exercise of the State’s sovereign police power to that end which has never yet been legislatively ordained

Link to the Law — HERE

Link to the Case Law — HERE


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