Louis S. Cali, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ., concurring. Nix, J., filed a dissenting opinion in which Roberts, J., joins. Manderino, J., filed a dissenting opinion.
Judgments of sentence affirmed.
NIX, Justice (dissenting).
In my belief, the Commonwealth has failed to establish any common understanding either explicit or implicit, formed either before or during the affray that the parties would engage in an encounter which would involve the use of force dangerous to life. See Commonwealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972).
As pointed out by Mr. Justice MANDERINO in his dissenting opinion, it is questionable whether the evidence establishes any intent on the part of this appellant to become embroiled in a physical altercation. However, accepting the most charitable view of the Commonwealth's evidence, at best the testimony would only support a criminal conspiracy to commit an assault and not a criminal conspiracy to commit a felonious homicide for which he was in fact charged.
There is clearly no basis upon which to conclude that there was any anticipation on the part of this appellant
that the intensity of any possible confrontation would reach a level which would pose a threat of serious bodily harm or death. Further there was no testimony to suggest that appellant had a weapon upon his person or was aware that any of his associates were armed. Since in my judgment appellant did not conspire to commit a felonious homicide he similarly should not have been ...