Joseph Alessandroni, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., dissents. Manderino, J., filed a dissenting opinion in which Roberts, J., joined.
Appellant, Lois June Farquharson, a psychiatrist, was indicted in the shooting death of Leon Weingrad, D.O., and convicted of murder of the first degree after a trial by jury which lasted over three weeks. Post-trial motions were argued before a Court en banc and were denied. A sentence of life imprisonment was imposed under the murder indictment and a two year concurrent sentence of imprisonment was imposed under the conspiracy indictment.*fn1 Appellant filed this appeal from the judgment of sentence entered under the murder indictment and was permitted, by this Court, to proceed in forma pauperis.
The sordid events which ultimately led to this senseless killing commenced in 1969 when Gloria Burnette, who was then a patient at the Ancora State Hospital in New Jersey, was placed under the care of Dr. Farquharson. Ms. Burnette had been experiencing mental and emotional problems since age 17 and had previously been confined on several occasions because of these difficulties. After being discharged from the hospital, Gloria maintained communication with Dr. Farquharson and the relationship subsequently developed into a homosexual union between the two. Thereafter, Dr. Farquharson left the staff at Ancora and became affiliated with the Pennsylvania State Hospital at Byberry. The couple moved from New Jersey to an apartment at the Society Hill Towers in Philadelphia.
Gloria also obtained employment at Byberry in the capacity of an attendant. During this time, the couple became acquainted with the deceased who had an office at Byberry situated directly across the hall from the office occupied by appellant. Dr. Weingrad also resided at Society
Hill Towers with his wife and two infant sons. Appellant began accusing Gloria of engaging in an illicit affair with Dr. Weingrad. As a result of these accusations, the relationship between appellant and Gloria became strained and was frequently punctuated by incidents of physical abuse.
The couple began engaging in a course of harassment against Dr. Weingrad which included slashing the tires of his automobile and breaking his automobile windshield. Throughout this period, Gloria charged that appellant was virtually at all times under the influence of either alcohol or drugs. She acknowledged that she too indulged in these practices. The relationship between Dr. Weingrad and the appellant deteriorated further when Dr. Weingrad spoke with Dr. Farquharson's superiors complaining about the quality of Dr. Farquharson's work at the hospital.
Ms. Burnette, testifying as a witness for the Commonwealth, stated that a few days prior to the fatal shooting, she had used Dr. Farquharson's identification for the purpose of securing a revolver. She stated that Dr. Farquharson had expressed their need for a gun in their apartment because of a number of burglaries which had occurred in their apartment building. The weapon was obtained on Friday, the 27th of August.
Gloria testified that when they awoke on Sunday morning, August 29th, she informed Dr. Farquharson of her intention to kill Dr. Weingrad for the purpose of proving to Dr. Farquharson her love.*fn2 It was her testimony
that she believed that this was the only way she could convince appellant that her (appellant's) jealousy was unfounded. Appellant responded by suggesting that she (appellant) could find someone in Baltimore, Maryland, who would be willing to do the killing for them. This proposal was rejected by Ms. Burnette. The parties then agreed that Gloria would kill Dr. Weingrad and pursuant to that purpose the couple left their apartment and went to the apartment of the deceased.
Upon learning that Dr. Weingrad's wife and small children were also in the apartment, Ms. Burnette gained admittance by asking the doctor to treat a burn on her foot which she had sustained the previous day.*fn3 After attending the foot, Dr. Weingrad left the apartment along with Gloria. The deceased was required to go to the Police Administration Building and was in the process of leaving home for that purpose when Gloria
arrived.*fn4 When the deceased and Gloria reached the parking lot, they were observed engaged in a violent argument and shortly thereafter, Gloria fired several shots fatally wounding Dr. Weingrad.
In response, Dr. Farquharson denied that she had expressed a need to have a weapon in the apartment and testified that she was not aware that Gloria intended to purchase the gun. She stated that when she became aware of the acquisition of the pistol, she insisted that it be returned. Appellant also testified that the quarrels between the two were inspired by Gloria's jealousy and not hers. Dr. Farquharson further testified that she had not had a personal confrontation with the deceased and although she admitted harboring hostility towards Dr. Weingrad, she stated that the reason for this attitude was as a result of Gloria's continuous assertions that Dr. Weingrad was attempting to jeopardize appellant's position at the hospital. Dr. Farquharson testified that she did not recall Gloria expressing to her an intention to kill Dr. Weingrad. Significantly, however, she did not dispute the possibility that such a conversation may have taken place but merely asserted that she could not recall it. The position of the defense at trial was that Dr. Farquharson did not participate in any conspiratorial agreement to murder Dr. Weingrad.*fn5
The theory upon which the Commonwealth predicated its case against appellant was one of vicarious liability as a consequence of shared criminal intent and the existence of a conspiracy between appellant and Gloria Burnette to murder Dr. Weingrad.
"It is established beyond question that the wounds causing death of the victim were inflicted by one other than the appellant and therefore, criminal responsibility can only attach to the appellant through some theory of vicarious liability. All theories that are recognized under our law to hold one responsible for the criminal acts of another require the existence of a shared criminal intent. It is well settled that the nexus which renders all members of a criminal conspiracy responsible for the acts of any of its members is the
unlawful agreement. Commonwealth v. Yobbagy, 410 Pa. 172, 177, 188 A.2d 750, 752 (1963); Commonwealth v. Neff, 407 Pa. 1, 7, 179 A.2d 630, 632 (1962); Commonwealth v. Kirk, 340 Pa. 346, 17 A.2d 195 (1941), aff'g 141 Pa. Super. 123, 14 A.2d 914 (1940); Commonwealth v. Richardson, 229 Pa. 609, 79 A. 222 (1911), aff'g 42 Pa. Super. 337 (1910). It is equally as clear that this element of shared criminal intent must be found to be present to justify a finding that an accused was an accomplice. Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A.2d 733, 736 (1953), cert. denied, 347 U.S. 914, 74 S.Ct. 479, 98 L.Ed. 1070 (1954); Commonwealth v. Thomas, 357 Pa. 68, 72, 53 A.2d 112, 114 (1947); Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926)."
Commonwealth v. Wilson, 449 Pa. 235, 237-238, 296 A.2d 719, 721 (1972).
Although appellant has raised numerous arguments in support of this appeal, only some are deserving of extensive discussion. Appellant contends that the testimony of Gloria Burnette was so unreliable and untrustworthy that the jury should have rejected it as not being credible. Proceeding from this premise, it is urged that since the jury apparently did rely upon this testimony in reaching their finding of guilt, a new trial must now be awarded.
Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution. Commonwealth v. Hampton, 462 Pa. 334, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). While there may be some legitimacy for a trial court, who has also observed the ...