Joshua M. Briskin, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., dissents.
Appellant, Tyrone W. Finley, was convicted by a jury of murder in the third degree, burglary, and criminal conspiracy. Post-verdict motions were denied, and a sentence of ten to twenty years imprisonment for the murder conviction was imposed, with a consecutive five to ten year sentence for the burglary conviction, and a concurrent five to ten year sentence for the conspiracy conviction. The judgment of sentence for murder was appealed directly to us, and the judgments of sentence for burglary and conspiracy were appealed to the Superior Court and transferred here.
At trial, after the prosecution had rested its case, appellant's motion for a directed verdict was denied. Appellant presented no evidence. In post-verdict motions, and again in this appeal, appellant contends that the trial court erred in denying his motion for a directed verdict.
A motion for a directed verdict should be granted if the prosecution's evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused is guilty of the crimes charged. Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974); Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973).
The prosecution contends that the evidence and the inferences arising therefrom in this case prove beyond a reasonable doubt that appellant conspired with others to kill and rob one Melvin Clark at his house. It is clear that the appellant
did not enter Clark's house, and was not physically present inside the house when the killing and robbery occurred. The prosecution's case therefore was based on the theory that appellant remained outside the house to act as a lookout and as driver of the getaway car.
There is no doubt that one who acts as lookout and driver of a getaway car is as guilty as those who carry out the planned crimes. Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964). The evidence, however, must be sufficient to establish that appellant had knowledge of the planned crimes and aided and abetted the commission of the crimes.
In this case appellant does not dispute that the evidence is sufficient to establish that he was in a car parked near the Clark's house during the time that he was killed and robbed. Appellant contends, however, that the evidence fails to establish that he had any knowledge of the planned crimes or that he was acting as a lookout or serving as the driver of the getaway car.
The prosecution presented the testimony of five witnesses. Four of these witnesses gave no testimony whatsoever which would tend to prove appellant's guilt. One of these witnesses was a police officer who arrived at the scene of the robbery-homicide after the participants in the crime had already left. Another of these witnesses was the victim's father, whose testimony was limited to identifying the victim. Another prosecution witness was a doctor employed by the medical examiner's office, who conducted the post mortem examination of the victim. This witness's testimony established only that the victim died of gunshot wounds. A fourth witness for the prosecution was a woman who lived with the victim and was ...