Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1968, Nos. 519 and 521, in case of Commonwealth of Pennsylvania v. Wayne Neal.
William J. Lederer, with him Frank Carano, for appellant.
Romer Holleran, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result.
Appellant was convicted, after a jury trial, of aggravated robbery and second-degree murder. His post-trial motions were denied, and he was sentenced to concurrent prison terms of not less than seven nor more than twenty years. The judgment of sentence on
the second-degree murder conviction was appealed to this Court and the Superior Court certified the appeal from the judgment of sentence for aggravated robbery filed there in order that we might consider both appeals together.
The facts as disclosed by the record are that appellant, together with three other men, Stokes, Turner and Owens, after consuming a considerable quantity of alcoholic beverages, determined that they would commit a robbery. Appellant and Stokes then armed themselves with loaded pistols, which they placed in their respective pockets, and the four men left appellant's house, where the drinking and plotting had occurred, and proceeded along the streets of Philadelphia. They proceeded some three blocks until they reached a neighborhood grocery store operated by one Joseph Sandler. Sandler and his clerk, James Green, were preparing to close the store for the night when at least appellant, Stokes and Owens entered the store.*fn1 Stokes took a bag of potato chips from a display stand and threw it on the counter as though he were about to purchase it. He then reached into the pocket of his coat, pulled out his pistol and announced a holdup. Appellant at this point was standing some two or three feet from Stokes. Upon the announcement of the holdup, Sandler apparently reached for a meat cleaver. Stokes fired at once, hitting Sandler twice in the arm and twice in the chest. Green was hit in the left side of the face. Sandler fortunately recovered from his wounds but Green died of his wounds shortly after the incident.
The four men involved fled from the scene and an argument arose between appellant and Stokes. Appellant was critical of Stokes' action in shooting and further
indicated that he was unhappy that Stokes had engaged in a holdup in a store so close to appellant's home.
Appellant raises three issues on appeal. He first argues that the Commonwealth failed to meet its burden of proving that he either conspired to commit or participated in the crime in controversy. Reduced to its essentials, this argument attempts to paint appellant as an innocent bystander to Stokes' robbery and murder. Appellant contends that although he and his companions had conspired to commit a robbery, they had not settled upon a time or place, and although the probability is that they would have robbed some establishment that night, they had not settled upon this establishment, and in fact appellant would have been opposed to this particular robbery since the store was in his ...