Frank J. Marcone, Media, Thomas C. Carroll, Huntingdon Valley, for appellant.
Ralph B. D'Iorio, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., and Roberts, J., took no part in the consideration or decision of this case.
On December 16, 1974, appellant, Russell Menginie, was tried by a judge and jury and found guilty of voluntary manslaughter, criminal conspiracy, and commission of a crime with a firearm. Appellant was sentenced to a term of imprisonment of not less than four nor more than eight years on the voluntary manslaughter conviction, and to a concurrent term of the same duration on the criminal conspiracy charge. Sentence on the firearms conviction was suspended. Post-verdict motions were denied, and following a transfer from the Superior Court, all of appellant's convictions are before us on this direct appeal.
Appellant raises a number of issues only one of which we need address. Appellant contends he cannot be held vicariously responsible for the crimes charged -- i. e., his demurrer to the evidence should have been sustained -- because the prosecution did not prove its theory of a conspiracy to commit the crime. We agree.
At trial the prosecution's evidence concerning the facts surrounding the crime consisted of testimony by the deceased's brother, the deceased's father, and another witness, all of whom were present at the scene. From their testimony the following facts appeared. Kyle Culbert, the deceased, along with his brother and father, went in the family car to a drive-in restaurant. The time was approximately 2:00 a. m. The car pulled into the restaurant and the three men remained in their car, waiting to be served. The deceased's father was operating the vehicle, with the deceased sitting in the front seat next to the right side window, and with the deceased's brother sitting between them.
While the Culberts waited in line, a dark-colored station wagon, driven by appellant, approached the Culbert vehicle from the right. There was a passenger in the front seat of the station wagon, and a third occupant in the rear seat. According to the deceased's brother, the station wagon
"came up . . . real close" to the Culbert car, backed up a short distance, and then "came forward to the same position" within a short distance of the Culbert vehicle. A witness in the car ahead of the Culbert vehicle testified that appellant's car "attempted to squeeze in" on the Culbert vehicle. The witness stated: "[I]t was just like a face off to see who was going to get in front of who." The brother of the deceased as well as the deceased's father testified that the occupants of the station wagon were laughing.
When the station wagon approached the Culbert vehicle the second time, the deceased's father testified that the deceased said to the three men: "How about knock it off." The deceased's brother testified that the deceased's words were: "What are you trying to do?" When the station wagon backed up the deceased and his brother got out of the car, as did the passenger in the front seat of the station wagon. The deceased's brother testified that when he and the deceased exited their vehicle, appellant had not yet alighted from the station wagon. The witness in the car ahead of the Culbert car testified that appellant did eventually get out of his car, although he remained close to the door of the car.
At this point -- with appellant, the passenger from the front seat of the station wagon, and the two young Culberts out of the cars, and with the senior Culbert alighting from his car -- the passenger in the rear seat of the station wagon exited the car and fired one shot which fatally wounded Kyle ...