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COMMONWEALTH v. MCNEAL (05/22/74)

decided: May 22, 1974.

COMMONWEALTH
v.
MCNEAL, APPELLANT



Appeal from judgments of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, Nos. 1331 and 1332, in case of Commonwealth of Pennsylvania v. Gregory McNeal.

COUNSEL

Robert M. Pressman, with him Pressman and Lipsky, for appellant.

Albert L. Becker, Assistant District Attorney, with him James T. Ranney, David Richman, and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Roberts and Mr. Justice Nix concur in the result.

Author: Eagen

[ 456 Pa. Page 395]

Gregory McNeal was convicted by a jury of rape, conspiracy to commit rape and murder in the first degree.

[ 456 Pa. Page 396]

After denial of post-trial motions, a sentence of life imprisonment was imposed on the murder conviction as the jury directed in its verdict. A concurrent prison sentence of seven and one-half to fifteen years was imposed on the rape conviction.*fn1 This one appeal followed.*fn2

The prosecution followed the finding of the abandoned body of a nineteen-year-old female in a vacant lot in Philadelphia. The body bore evidence of horrible sex abuse and untimely death due to manual strangulation. It was the Commonwealth's position at trial that McNeal and other males entered into an agreement or conspiracy to forcibly rape the victim, and in the perpetration of the rape she was killed by one or more of the group. McNeal testified that the victim willingly went with him and two others to a certain house where she voluntarily undressed and consensually engaged in sexual intercourse with his two companions; that four other males then arrived on the scene, and he left the premises because he feared there would be trouble due to the crowd.

In this appeal, McNeal does not dispute entering into the conspiracy to rape, as charged by the Commonwealth, but contends "the felony-murder doctrine should not be applied where the murder is not committed in furtherance of the conspiracy." This is, undoubtedly, correct legally and morally, but whether or not the killing in this case was "committed in furtherance

[ 456 Pa. Page 397]

    of the conspiracy" was a question of proof for the jury to resolve. Even though McNeal testified he had departed from the scene of the killing before it occurred, his credibility was for the jury. Furthermore, the fact that he left the scene before the killing would not, in itself, exonerate him from culpability for the killing, if the killing were committed in furtherance of the conspiracy of which he was a part. Commonwealth v. Waddy, 447 Pa. 262, 290 A.2d 238 (1972), and Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963). And, it would matter not that McNeal did not anticipate the victim would be killed in furtherance of the conspiracy. See Commonwealth v. Guida, 341 Pa. 305, 19 A.2d 98 (1941). Nor would it matter that others joined and participated in the conspiracy after it began. Cf. United States v. Dolasco, 470 F. 2d 1297 (3d Cir. 1972), and United States v. Nasse, 432 F. 2d 1293 (7th Cir. 1970).

After studying the record, we are completely satisfied the proof was ample for the jury to find that McNeal and others conspired to rape the victim involved, and that the killing was committed in the furtherance of this conspiracy. We also have no doubt the jury was also warranted in finding McNeal had not withdrawn from the conspiracy before the killing occurred. Hence, the jury had the ...


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