Sheldon C. Jelin, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James J. Wilson, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case. Nix and Manderino, JJ., concur in the result.
On August 8, 1974, the appellant, Harold Roux, was adjudged guilty, after a non-jury trial, of murder in the second degree and conspiracy. Post trial motions were filed and denied and Roux was placed on probation for twenty years on the murder conviction, conditioned, inter alia, that he, an eleventh-grade dropout, finish both high-school and college. Sentence was suspended on the conspiracy conviction. An appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. An appeal from the order on the conspiracy conviction was filed in the Superior Court and later certified here.*fn1 The appeals were then consolidated for argument and disposition.
Initially, Roux contends that the evidence presented at trial was insufficient to support a verdict of guilty of conspiracy and, consequently, the verdict of murder in the second degree which resulted therefrom. We have said many times that "[o]n appeal from a criminal conviction, the test for evaluating the sufficiency of the evidence is whether, viewing the entire record in the light most favorable to the Commonwealth, a finder of fact could reasonably have found that all elements of the crime charged had been proved beyond a reasonable doubt." Commonwealth v. Lowe, 460 Pa. 357, 358-359,
A.2d 765, 766 (1975). See also Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973).
The evidence presented at trial, considered in accordance with the above standard, was sufficient for the trial court to have found the following facts: In the early morning hours of November 10, 1973, one Domingo Martinez entered the Oxford Bar located in Philadelphia. Soon thereafter, Martinez became embroiled in an altercation with Herbert "Junior" Pennington over the operation of the bar's cigarette vending machine in which Martinez had apparently lost some money. Before any blows were exchanged, however, the bartender separated the potential combatants and each took up a seat at opposite sides of the bar; Pennington rejoining his companions Clenzo West, Albert Brown, Ray McClendon and the appellant, Harold Roux. At this point, Roux said to Pennington, "Be cool 'June', be cool 'June'; that is a head." Pennington interpreted this admonition to mean that Martinez was a potential robbery victim.
Martinez remained in the bar for approximately forty-five minutes before leaving. During this period of time, Roux and McClendon was seen passing a black-handled knife, the eventual murder weapon, between themselves while they sat at the bar. When Martinez left the bar he was followed, shortly thereafter, by Roux, McClendon, Pennington, West and Brown. These five individuals came upon Martinez in the street outside the bar and commenced beating him with their fists and various implements. This beating lasted for approximately two or three minutes during which Martinez was forced to the ground. The last two assailants beating Martinez were Roux and McClendon, the three other confederates having crossed the street to a nearby corner. McClendon then took the aforementioned black-handled knife from Roux and, while Roux was walking away, McClendon stabbed Martinez three times. Everybody then fled the scene with Roux taking the murder weapon and hiding it
at the home of his girl friend. Martinez was later found dead from ...