## Facts

- In 1947, James Smith and two confederates committed an armed robbery of a Philadelphia supermarket.
- Police confronted the robbers during their escape, and a gun battle occurred.
- A bystander was fatally shot during the exchange; the evidence did not conclusively establish whether the fatal shot was fired by a robber or by a police officer resisting the robbery.
- At Smith’s 1948 trial, the jury was instructed that the identity of the shooter was legally irrelevant and that Smith could be convicted of first-degree murder if the robbery was the proximate cause of the death.
- Smith was convicted of first-degree murder and sentenced to life imprisonment; he did not file a direct appeal.
- Years later, Smith sought habeas corpus relief, asserting he had not knowingly waived appellate rights and challenging the felony-murder instruction.
- The lower court denied relief, and Smith appealed; the Pennsylvania Supreme Court reviewed the matter as a delayed direct appeal.

## Issues

1. Whether the felony-murder rule permits a murder conviction when the fatal shot is fired by a third party (such as police) acting in opposition to the felony, rather than by the felon or an accomplice.
2. Whether Smith knowingly and intelligently waived his right to a direct appeal, or instead was entitled to appeal nunc pro tunc.

## Decision

- The Pennsylvania Supreme Court reversed the order denying relief and treated the case as a direct appeal nunc pro tunc.
- The court held the felony-murder rule does not apply when the lethal act is committed by a person resisting the felony (e.g., a police officer), rather than by the felon or a co-felon acting in furtherance of the felony.
- The court rejected the proximate-cause theory of felony murder previously used to sustain liability for deaths caused by adversaries of the felons.
- The court held Smith had not knowingly and intelligently waived his right to appeal.
- The court ordered a new trial because the jury instruction allowed conviction under an erroneous expansion of felony-murder liability.

## Legal Principles

- Felony-murder liability requires that the killing be committed by the felon or an accomplice acting in concert in perpetrating or attempting the felony; it does not extend to killings by third parties acting in opposition to the felony.
- Tort-style proximate-cause concepts are not a proper basis to expand criminal murder liability to deaths caused by adversaries of the felon.
- Waiver of the right to appeal must be knowing, intelligent, and voluntary; a failure to appeal, without such waiver, permits an appeal nunc pro tunc to obtain full review.

## Conclusion

Pennsylvania confined felony murder to killings committed by felons or their accomplices and granted Smith a nunc pro tunc appeal because he had not knowingly waived appellate review, requiring a new trial due to an incorrect jury instruction that permitted conviction for a death caused by a resisting third party.


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