No. 54 March Term, 1977, Appeal From the Judgments of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal Action No. 1-1/7 of 1975, Dated October 19, 1976.
Thomas P. Ruane, Jr., Public Defender, John F. Wagner, Jr., Asst. Public Defender, Uniontown, for appellant.
Gerald R. Solomon, Ralph C. Warman, Uniontown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Appellant James Lee Smith was convicted by a jury of two counts of murder, the first being murder of the first degree and the second being murder of the third degree. This is a direct appeal from the judgments of sentence.*fn1
The relevant facts were established at trial as follows. On December 15, 1974 Fant, Rodgers and Collins were at a nightclub from which Fant was ejected as a result of an altercation at the bar. Thereafter a scuffle broke out in the parking lot and Bruce Fisher, the nightclub owner, sprayed mace into the group to restore order. As Fant, Rodgers and Collins were leaving they announced they would return. Shortly thereafter these three, accompanied by appellant, returned to the parking lot. Fant was carrying a rifle and appellant a hand gun. Fant yelled, "Who do I shoot?" to the persons in the parking lot, and the four men entered the nightclub through the front door. Once inside, appellant asked, "Which one is Bruce, where is Bruce?" Bruce Fisher approached the group and appellant said to him, "What are you doing beating on my brother?" Fisher was then struck on the head with a beer bottle by Rodgers. According to the uncontradicted testimony of one witness, during this time the appellant was waving his pistol around as if to cover Fant, who was holding the rifle.
As Fisher turned and walked away from the group, Fant brought his rifle up to waist level and fired, striking Fisher in the back and killing him almost instantly. Fant fired several other shots, one of which struck and killed John Shlosky, a patron, in the rear of the bar. As Fant was firing his rifle, appellant who stood beside him, fired his revolver several times in the nightclub, not hitting either Fisher or Shlosky. One or two other patrons of the lounge were injured by gunfire. A .38 caliber revolver slug was found waist high in the side wall panelling of the lounge.
First appellant complains there was insufficient evidence to support the conviction. More specifically, appellant argues that since the fatal shots were fired by Fant, the Commonwealth failed to prove the element of appellant's causation of the deaths; and, that since Fant was convicted of murder of the third degree, the Commonwealth failed to satisfy their burden of proving that appellant formed the necessary intent for murder of the first degree.
The fact that the fatal shots were fired by someone other than appellant is inconsequential since an accomplice is held to be equally accountable for the killing. 18 Pa.C.S.A. § 306(b)(3). ...