Louis D. Musica, Meadville, for appellant in No. 29 March Term, 1975.
Michael J. Wherry, Grove City, for appellant in No. 30 March Term, 1975.
Paul D. Shafer, Jr., Dist. Atty., Ballard F. Smith, Jr., Asst. Dist. Atty., Meadville, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., filed a concurring opinion. Nix, J., filed a concurring and dissenting opinion. Eagen, C. J., would also affirm the judgment of sentence imposed on Gartner's murder conviction.
After a joint trial, appellants Robert Gartner and Randy Pfaff were convicted by a jury of murder of the second degree*fn1 and aggravated assault.*fn2 Post-verdict motions were denied and sentences covering both offenses were imposed.*fn3
These appeals followed.*fn4 We affirm appellant Pfaff's convictions for both murder and aggravated assault. We reverse appellant Gartner's conviction for murder and affirm his conviction for aggravated assault. Because we are unable to determine what part of the sentence imposed on appellant Gartner was for the conviction on aggravated assault, we remand for re-sentencing on that conviction.
The murder convictions will be considered in Part I of this opinion, the common claims of Gartner and Pfaff relating to the assault convictions in Part II, and additional claims made by Gartner relating to the assault conviction in Part III.
The trial court's opinion on post-verdict motions summarized the facts:
"Around 9:15 P.M. on December 1, 1973, a verbal confrontation took place between a group of teen-age blacks and two young white teen-agers and their dates at a public park in Meadville, known as Diamond Park. The black youths had arrived at the scene in a car operated by Otis Mack and its passengers were Marlon Matthews (the deceased victim) and Clifford McClure. The two white youths, Delo and Perrine, sent their girl friends to a telephone to call additional help to the scene. The call was placed to the clubhouse of a local motorcycle club known as 'The Scorpions' and in short order Robert Gartner, Randy Pfaff and Larry Steele arrived in a car at the scene. The car was parked and as Gartner, Pfaff and Steele arrived, the confrontation had come to an end and the group of blacks was leaving in their car. Some words were exchanged between the three new arrivals and the departing blacks, and there was testimony that the departing car narrowly missed Gartner as he was standing near the edge of a street.
"As the confrontation broke up, the departing remarks by both groups, while somewhat conflicting, clearly indicated that the whites were going to 'the (Scorpion) Clubhouse' and if the blacks wanted to continue the confrontation they could find the whites at the clubhouse. One witness testified that someone in the blacks' car said, 'We'll be there,' and Delo responded with, 'I'll bet you $20.00 you won't.'
"In short order, Delo, Perrine and their two dates went to the Scorpion Clubhouse (about two to three miles from Diamond Park) and were followed by Gartner, Pfaff, Steele, Dalton Smith and Dominic Mottillo.
"Dalton Smith had been a late arrival at Diamond Park and attempted to ascertain what the trouble was about. He was told by Perrine that the blacks had been harassing them and following their car and were going to meet them at the clubhouse. Shortly, Gartner, Pfaff and Steele produced rifles from somewhere and set them in the corner of the clubhouse. The group sat around drinking beer for awhile. A short time later Gartner, Pfaff and Steele took their rifles and went outside the clubhouse. Gartner, armed with a loaded rifle, proceeded a short distance north of the clubhouse near some bushes where he had a clear view of the public highway and the driveway leading into the front of the clubhouse. The area was well lighted by an external building light and a street light. Pfaff, also armed with a rifle, proceeded to a location further from the highway and to the rear of the clubhouse and stationed himself on the hood of an abandoned car. The jury could easily have concluded that Gartner was to stand guard in the event of a 'frontal' attack or approach by the blacks and Pfaff was to guard against an attack from the 'rear.' The testimony is unclear as to where Steele was at the time of the shooting but he definitely left the clubhouse armed with a rifle at about the same time Gartner and Pfaff left.
"Meanwhile, while the whites had proceeded to the clubhouse, Mack, Matthews and McClure had proceeded to
a local teen-age center, stayed about forty minutes and then went to a local tavern owned by the parents of their friend, Richard Stinson. There, after some delay, they picked up Richard Stinson, Albert Stinson, Odell Wynn and Robert Wofford.
"After some time spent at the tavern talking, having a soft drink and getting everyone into the car, Mack proceeded to drive back through the city of Meadville and then proceeded south toward the Scorpion Clubhouse. The testimony of the blacks was confusing as to the exact reason they were going to the clubhouse but the jury could have easily concluded that it was to continue in some way the verbal argument and name calling that started in the park.
"The 'confrontation' at the Diamond Park ended about 9:30 P.M. and the testimony indicates that Mack and his black companions later arrived back at the Scorpion Clubhouse between 11:05 and 11:30 P.M.
"When Mack arrived, he pulled the front end of his car into the dirt driveway of the clubhouse and the undercarriage apparently 'hit bottom' and caused a loud thump. Someone from the clubhouse yelled, 'Hey, get out of here,' and Mack then backed the car out of the driveway and north on the paved road in preparation to proceed on south past the clubhouse. None of the blacks got out of the car and as the car was momentarily stopped on the paved road in preparation to proceed on south, Gartner fired a round from his position beside the road. Gartner was using a 7 mm bolt action Spanish rifle. As the car started to move south on the road, Gartner fired a second round. The first round was fired from a distance of about sixty-eight feet and the second from one hundred and forty-seven feet. The first round hit the undercarriage of the car, passed through three metal parts of the undercarriage, hit the frame and disintegrated. The second round was higher and hit the rear window molding, shattered the rear window and lodged in the head of a passenger, Marlon Matthews. Matthews died the next day. Two
others were also injured by the second round, apparently from flying glass, bits of metal or small separate fragments of the second bullet that killed Matthews.
"As the car sped down the road, Gartner, Pfaff and Steele came back to the clubhouse and in answer to inquiries as to who fired the shots, Gartner said he had. He told Dalton Smith he fired the shots but had a hard time seeing the front sights on his gun. Smith said someone asked Gartner if he hit the car and Gartner said no, he was too drunk and couldn't see the front sights.*fn5
"Soon Pfaff produced two blankets, the three guns were wrapped in the two blankets and Smith agreed to 'keep' the guns for them. Smith hid them in a cemetery but later surrendered them to the police and testified as a Commonwealth witness.
"The Commonwealth's theory was that Gartner was the perpetrator of the crime but that Pfaff was equally guilty as an accomplice."
Appellant Gartner contends that he must be granted a new trial on the charge of murder because the trial court refused a request that the jury be instructed ...