Albert Ominsky, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., MariAnne E. Cox, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Appellant stands convicted of murder in the second degree. In this appeal, he raises three grounds for reversal of that conviction. First, appellant challenges the sufficiency of the evidence to support the conviction. Second, he argues that the trial court improperly allowed the prior testimony of an absent eyewitness to be read into the record without the Commonwealth initially demonstrating a good faith effort to obtain the witness' presence. Finally, he maintains that as a principal in the second degree, his conviction cannot be upheld where the alleged perpetrator of the homicide has been subsequently found not guilty.*fn1
The evidence adduced at trial demonstrated that the appellant, Michael Land, and Earl Webster undertook to avenge an assault of a friend by a rival gang. The appellant and Land were to distract the attention of the intended victim and Webster was to attack from the rear. While the plan was developing, a shot fatally wounded a bystander. The trial testimony of Michael Land and an eyewitness' prior testimony from an earlier mistrial established that the shot came from the direction of Webster and that Webster had had a gun in his hand. Viewing this direct and circumstantial evidence, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth, Commonwealth v. Townes, 460 Pa. 709, 334 A.2d 599 (1975); Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974), one could conclude that a conspiracy was formed and that in the furtherance of that conspiracy, a participant shot and killed a bystander. Although some evidence supporting the conviction is circumstantial, the evidence taken as a whole is sufficient to sustain appellant's conviction. Commonwealth v. Vaughn, 459 Pa. 35, 326 A.2d 393 (1974); Commonwealth v. Figueroa, 456 Pa. 381, 321 A.2d 658 (1974); Commonwealth v. Pierce, 437 Pa. 266, 263 A.2d 350 (1970).
The evidence we have considered as sufficient to support the appellant's conviction includes the testimony of an eyewitness, Mark Dorsey. Dorsey was absent from the trial, but he had previously testified under oath and subject to cross-examination in an earlier mistrial of appellant.
Appellant recognizes that prior sworn testimony is admissible in a subsequent proceeding where the witness cannot be found and the defense has had an opportunity for cross-examination. Act of May 23, 1887, P.L. 158, § 3, 19 P.S. § 582; Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Beach, 445 Pa. 257, 284 A.2d 792 (1971). However, "[a] witness 'cannot be
found,' within the meaning of section 3 of the Act of May 23, 1887, only if a good-faith effort to locate the witness and compel his attendance at trial has failed." Commonwealth v. Blair, 460 Pa. at 32, 331 A.2d at 214.
Here, the absent witness was living at St. Michael's School for Boys near Scranton, Pa. When notified by the District Attorney's office that he would be called as a witness, his grandmother contacted the school authorities who released the boy into her custody. He arrived at her home in Philadelphia the evening before trial. As the grandmother was preparing to leave for court the next morning, the child disappeared. When the grandmother could not find him, she came to court alone and informed the District Attorney of the boy's disappearance. A subsequent phone check to the grandmother's home went unanswered. To ...