Eugene H. Clarke, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion in which Roberts, J., joined.
Appellant was found guilty by a jury of murder in the first degree, assault and battery with intent to kill and conspiracy. Post-trial motions were denied and this appeal followed.
On August 29, 1970, at or about 8:30 p.m., Officers Harrington and Kenner of the Fairmount Park Police in Philadelphia were turning into the Cobbs Creek Guardhouse
of the 93rd Police District when they saw an unidentified Negro man gesturing at them to stop. The man then fired into the face of Officer Harrington, seriously injuring his lower jaw. A gun battle ensued between Officer Kenner and the assailant. Officer Kenner was soon joined by two additional police officers and they called for additional support. Officer McConomy, who occupied a guardhouse at the 96th District Station, received the call for assistance and radioed Officer Von Colln at the Cobbs Creek Guardhouse to find out what the trouble was. Von Colln replied, "I am not sure." Just then a second call came over the radio and Officer McConomy told Von Colln he had a second assistance call. To this Von Colln replied, "Oh yeah?" Officer McConomy then heard several shots through the receiver and asked Von Colln what was happening, but he received no reply. Officer Von Colln died of gunshot wounds.
At the scene of the shooting of Officer Harrington, police arrested Hugh Sinclair Williams, who, just before the arrest, dropped a bag containing a .32 revolver, fifteen cartridges, and a fragmentation grenade.
Pasquale DiCamillo, driving in the vicinity on the night of the crime, saw a police wagon parked with a man firing from behind a corner of the wagon and another man running into the street. Mr. DiCamillo later identified the person firing the shots as Russell Shoats and identified the other man as one of the Joyner brothers. Robert Grier testified that on the evening of the murder, he was driving in the vicinity and when he stopped to let police cars through, Russell Shoats, armed with a weapon, entered his car and forced him to drive out of the area. While Mr. Grier was driving, Shoats told him that if he told the police anything, he, Shoats, would get Grier's family. Later, Detective Edward Staume, armed with a search warrant went to 432 South 56th Street and arrested Alvin Joyner. A search of Joyner's
home disclosed a rifle, 30-30 ammunition, 9-millimeter rounds, and two army fragmentation grenades.
On the basis of information apparently given to them by Marie Williams, wife of Hugh Sinclair Williams, police concluded that the crime was the work of a gang known as "The Revolutionaries," which included her husband, Alvin Joyner, Robert Joyner, Richard Thomas, Russell Shoats, and appellant Frederick Burton. Appellant was arrested, and after a warrant was obtained, a search of his home disclosed a number of spent cartridges, a 9-millimeter shell, a fragmentation grenade similar to those found at the murder scene and a 24" by 20" drawing of a police sergeant on his knees with a black militant holding a gun to his head, with the caption, "This Now."*fn1 Appellant was tried by a judge and jury and found guilty of murder in the first degree, assault with intent to murder, and conspiracy for his role in the conspiracy which led to the killing of Officer Von Colln. Appellant now brings this appeal, in which he raises several issues.
Appellant argues that the Commonwealth's evidence was insufficient to prove his guilt beyond a reasonable doubt, emphasizing that no witness saw him at the scene of the murder or at the shooting of Officer Harrington. We reject appellant's argument. As we said in Commonwealth v. Eiland, 450 Pa. 566, 570-571, 301 A.2d 651, 653 (1973):
". . . Although more than mere association must be shown, '"[a] conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: . . ."' Commonwealth v. Neff
[407 Pa. 1, 179 A.2d 630 (1962)] . . . at 6, 179 A.2d at 632, quoting Commonwealth v. Horvath, 187 Pa. Super. 206, ...