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COMMONWEALTH PENNSYLVANIA v. CONSTANCE DUSSINGER (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
CONSTANCE DUSSINGER, APPELLANT (TWO CASES)



Nos. 347 and 387 January Term, 1976, Appeal from Judgments of Sentence of February 25, 1976, of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at Nos. 1002-1005 August Term, 1974.

COUNSEL

Alan M. Lerner, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former J., took no part in the decision of this case. Pomeroy, J., files a concurring opinion in which Eagen, C. J., joins. Nix, J., files a concurring opinion. Roberts, J., concurs in the result. Manderino, J., files a concurring and dissenting opinion.

Author: O'brien

[ 478 Pa. Page 185]

OPINION

Appellant, Constance Dussinger, also known as Constance Kelley, was tried by a judge and jury and was convicted of two counts of murder of the second degree, robbery, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to two concurrent terms of life imprisonment. Sentence was suspended on the robbery and conspiracy convictions. The homicide convictions were appealed directly to this court, while the non-homicide convictions were appealed to Superior Court, which certified those appeals to this court.

The facts are as follows. On July 3, 1974, the partially decomposed bodies of Willie Billingsley and Ernest Barnes were discovered in Billingsley's Philadelphia residence. Both victims died of gunshot wounds to the head. The

[ 478 Pa. Page 186]

    medical examiner found it impossible to accurately determine the times of death, but he estimated that both deaths occurred between 6:00 a. m. on Monday, July 1, 1974 and 6:00 p. m. on Tuesday, July 2, 1974.

During their investigation, police discovered that Billingsley held at his residence Monday-night poker games involving large sums of money. Police discovered that a game was held on July 1, 1974, two days before the bodies were discovered. Investigation further revealed that Billingsley, during the week prior to his death, had "hit a number" for well over one thousand dollars. Despite the foregoing facts, no money was found on either of the victims or in the house. Further, when Billingsley's body was discovered, the pockets of his trousers were pulled out and a large glass bank was broken into two pieces.

During their investigation, the police found that appellant had been employed by Billingsley to serve food and drinks at his weekly poker games. She was originally questioned concerning Billingsley's background; however, she subsequently gave police an inculpatory statement. According to appellant, in late June of 1974, a co-defendant, Ervin Warren, had stolen approximately $1,500 worth of payroll checks. Warren gave the checks to appellant, who gave them to Billingsley. Warren later decided to cash the checks himself and told appellant to get the checks back. When appellant forgot to get the checks, Warren, appellant and co-defendant Charles Jackson went to Billingsley's home to recover the checks. Appellant knew both the purpose of the trip and that both of her companions had guns.

Once inside the Billingsley residence, Jackson handed appellant a gun and instructed her to keep it pointed at Barnes, who was sleeping on a couch. Warren and Jackson then accompanied Billingsley to the upper floor of the house. Appellant stated that five minutes later she heard two or three shots from upstairs, which startled her, causing the gun she was holding to accidentally discharge, killing Barnes. Appellant stated that she then fled the premises and returned home.

[ 478 Pa. Page 187]

Appellant first argues that the trial court erred in refusing her demurrer to the conspiracy and robbery indictments. She argues that since she neither took anything nor intended to participate in a robbery, the charges of conspiracy and robbery should not have been submitted to the jury.

The issue as presented to this Court is not properly preserved for appellate review.

In Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976), stated:

"The Appellant frames this question in terms of whether the trial court erred in not sustaining his demurrer to the evidence for lack of proof of cause of death. Since, however, the defendant did not rest following this adverse ruling, but elected to put in a case in defense, the correctness of the ruling on the demurrer is no longer an available issue. See Commonwealth v. Moore, 398 Pa. 198, 201-202, 157 A.2d 65 (1959); Commonwealth v. Spanos, 167 Pa. Super. 629, 631, 76 A.2d 243 (1950). But see Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). We have chosen, nevertheless, to treat the question as if properly framed, namely, whether the trial court erred in refusing defendant's motion in arrest of judgment. In doing so, of course, we consider all of the evidence at trial, not only that contained in the Commonwealth's case in chief. See Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965); Commonwealth v. Moore, supra; Commonwealth v. Kohne, 204 Pa. Super. 78, 203 A.2d 401 (1964); Commonwealth v. Gomori, 192 Pa. Super. 325, 161 A.2d 649 (1960); Commonwealth v. Cerzullo, 175 Pa. Super. 330, 104 A.2d 179 (1954)."

The appellant in the instant case, presented a defense. Therefore as in Ilgenfritz, supra we will treat her challenge as one to the sufficiency of the evidence rather than one challenging the correctness of the trial court's rulings on the demurrers.

In Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975), we stated:

[ 478 Pa. Page 188]

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); Commonwealth v. Boyd, 461 Pa. 17, 24, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975). Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Robson, supra; Commonwealth v. Murray, supra; Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Robson, supra; Commonwealth v. Smith, supra."

A review of the evidence in light of this standard makes clear that sufficient evidence is in record to sustain appellant's convictions for conspiracy and robbery.

In Commonwealth v. Mobley, 467 Pa. 460, 463, 359 A.2d 367, 368 (1976), we stated:

". . . It is well-established that a conspiracy may be proved by circumstantial evidence as well as by direct evidence. Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973); Commonwealth v. Batley, 436 Pa. 377, 392, 260 A.2d 793, 801 (1970); Commonwealth v. Yobbagy, 410 Pa. 172, 177, 188 A.2d 750, 752 (1963). 'Although more than a mere association must be shown, "'[a] conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: . . .'"' Commonwealth v. Eiland, supra; Commonwealth v. Neff, 407 Pa. 1, 6, 179 A.2d 630, 632 (1962); Commonwealth v. Horvath, 187 Pa. Super. 206, 211, 144 A.2d 489, 492 (1958)."

[ 478 Pa. Page 189]

In the instant case, appellant knew that her co-defendants intended to recover the stolen checks, even if the use of the handguns was necessary. Despite this, appellant went along with the pair and helped them gain entrance into the victim's home. From this evidence, it is reasonable to infer that appellant agreed with her co-defendants to rob the victim.

The same holds true for the charge of robbery. The Crimes Code provides:

"(a) General rule. -- A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

"(b) Conduct of another. -- A person is legally accountable for the conduct of another person when:

"(1) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;

"(2) he is made accountable for the conduct of such other person by this title or by the law ...


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