Walder, Martin & Kresman, Marshall E. Kresman, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Chief, Appeals Div., Maxine J. Stotland, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Jones, former C. J., took no part in the consideration or decision of this case. Packel, J., files a dissenting opinion.
Appellant, Leon Young, was tried by a judge, sitting with a jury, and found guilty of aggravated assault and battery, assault and battery with intent to murder and forcible entry.
Post-verdict motions were denied and appellant was sentenced to a term of imprisonment of one and one-half to three years for the aggravated assault and battery conviction, a concurrent three-to-six-year-term of imprisonment on the assault and battery with intent to murder conviction, and a suspended sentence on the forcible entry conviction. A direct appeal was taken to the Superior Court and on March 31, 1975, the Superior Court affirmed the judgments of sentence.
A petition for allowance of appeal was filed with this court and the petition was granted on July 7, 1975. The appeal was limited to the issue of ". . . whether the trial judge committed reversible error by instructing the jury that it could find the petitioner [appellant] criminally liable for the acts of his co-conspirators while failing to charge as to the elements of conspiracy."
The facts surrounding this appeal are as follows.*fn1 On August 22, 1972, appellant, Leon Young, accompanied by Leon Kelsey, Rickey Kelsey and David Warren, forcibly entered an apartment at 3616 Bouvier Street, Philadelphia, occupied by Ronald Williams. Leon Kelsey pointed a gun at Williams and questioned him regarding a stereo phonograph they believed he had stolen from one of the group. After a search of the apartment revealed nothing, appellant and his companions ordered Williams to a house on Thirteenth Street, where Williams had spent the day. En route to the Thirteenth Street apartment, the group saw a police car approaching them, at which time Rickey Kelsey handed a gun to appellant and David Warren, both of whom crossed the street. After the police car passed, Rickey Kelsey crossed the street, retrieved the gun, and the three rejoined Leon Kelsey and Ronald Williams and proceeded to Thirteenth Street. A search for the stereo in this apartment also proved fruitless, as did the questioning of the occupant concerning Williams' times of arrival and departure. The
five men left the house. Rickey Kelsey, separated from the group, crossed the street, leaving appellant, Leon Kelsey, David Warren and Ron Williams outside the Thirteenth Street apartment. Appellant and David Warren dropped to the ground and immediately a shot was fired that struck Williams in the back. Williams turned and saw Rickey Kelsey crossing the street with a gun in his hand. Williams then crawled under a nearby car and began yelling for help. Appellant and his companions fled the scene of the shooting.
The sole issue presented by the appeal is ". . . whether the trial judge committed reversible error by instructing the jury that it could find the petitioner [appellant] criminally liable for the acts of his co-conspirators ...