Duane, Morris & Heckscher, Martin A. Heckscher, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, 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.
Appellant, Richard Cox, after a trial without a jury, was found guilty of murder of the second degree along with other related charges which are not the subject of this appeal. Post-trial motions were filed, argued and denied and this direct appeal followed.*fn1
The first assignment of error is that the evidence was insufficient to sustain the murder conviction. In determining whether the evidence presented is sufficient to sustain the conviction, the test is, whether accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which if believed, a finder of fact could properly have based its verdict, was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt. Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A.2d 837, 838-39 (1973); Commonwealth v. Eiland, 450 Pa. 566, 569, 301 A.2d 651, 652 (1973); Commonwealth v. Williams, 450 Pa. 327, 329, 301 A.2d 867, 869 (1973); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337, 338 (1972).
Shortly after 2:00 A.M. on December 22, 1973, Ernest Pollard was in a bar located on the southwest corner of 19th and Parrish Streets in the City of Philadelphia. The bar was owned by his brother, Ralph Pollard. It was after closing time and Ernest was waiting for Ralph to come down from upstairs in order to secure the premises for the night. Johnny Wilcox, accompanied by the appellant, Richard Cox, and a third party identified as Wingate, approached the bar. Wilcox entered while the other two waited outside. Some angry words were exchanged
between Ernest and Wilcox, and Wilcox was asked to leave since the bar was closed. Wilcox and the two men with him walked across the street and stood on the steps of a doorway directly in front of the door to the bar. After a few minutes, Ernest crossed the street to speak with the three of them. As he approached, he heard Wilcox say something to the effect of jumping him and one of the other men in the group replied, "No, he is too big." Once again, Ernest and Wilcox exchanged words and Ernest returned to the bar. From the bar, through a full-length glass door, Ernest observed the three men run up Nineteenth Street. In about ten minutes he saw the trio return and resume their position on the same steps.
Minutes later, as Ernest and Ralph left the bar and began to lock the door, Ernest saw appellant, Wilcox and Wingate quickly descend the steps on which they were standing. Although they came in unison, one was slightly ahead of the others. Ralph shouted, "They have a gun", and, as he and Ernest turned to re-enter the bar, there was a loud noise and a "blast" from the direction of the appellant and his companions. Ernest was shot in the back of his left shoulder and survived. His brother, Ralph, however, was shot in the back and was pronounced dead on arrival at the hospital. There was no direct evidence as to which of the three individuals actually fired the shots, nor did Ernest see the weapon.
The thrust of the challenge to the sufficiency of the evidence is appellant's assertion that the testimony merely shows that appellant was present, along with others, during the commission of the crime and that he fled with them after the shooting. He argues that the missing element is the absence of proof of shared criminal intent. This argument obviously rests upon the assumption that appellant did not, in fact, fire the fatal shot and ...