No. 168 March Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7605689
Mark S. Frank, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Robert A. Zunich, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., files an opinion in support of affirmance which is joined by Eagen, C. J., and Larsen, J. Roberts, J., files an opinion in support of reversal in which Nix and Manderino, JJ., join. Pomeroy, former J., took no part in the consideration or decision of this case.
The Court being equally divided the judgment of sentence remains in effect.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant, Michael Perkins, was tried by a judge sitting with a jury and was convicted of murder of the third degree. Post-verdict motions were denied and appellant was sentenced to serve a prison term of three to ten years. This direct appeal followed.
The facts are as follows. On the evening of July 14, 1976, Ronald Fisher, the victim, and six or seven of his friends were drinking beer on the front porch of the Fisher home. As a carload of female acquaintances drove by, someone threw an empty beer bottle, which shattered on the street. The girls pulled over and one of the victim's friends, Eddie Nemeth, left the porch to talk to the girls.
Shortly thereafter, appellant drove up the street and ran over the broken glass. Appellant and three occupants got out of their car and accused Nemeth of striking the auto with a baseball bat. When the victim and his friends went to Nemeth's aid, appellant and his companions got back in the car and drove away.
The victim and his friends returned to the Fisher porch. Within five minutes, appellant returned with several supporters riding in two other cars. A number of these individuals left their cars and approached the porch. A fight broke
out and eventually shots were fired. Appellant and his friends got back in their cars and sped away. Ronald Fisher was pronounced dead on arrival at Allegheny General Hospital from a gunshot wound of the head.
Appellant first claims that the trial court erred in charging the jury on appellant's possible criminal liability under the accomplice section of the Crimes Code. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 306. The facts are as follows.
Appellant was charged by information with counts of murder of the first degree, murder of the third degree, voluntary manslaughter and involuntary manslaughter. At trial, various Commonwealth witnesses testified that appellant shot the victim.
Defense witnesses, including appellant himself, testified that the group went to the Fisher porch to fight. No one, however, knew that Randy Jones was carrying a gun, and these witnesses testified that Jones did the shooting. Some of the Commonwealth witnesses testified that after the original encounter, appellant, before driving off, yelled that he would be back with a gun. Appellant did testify that he approached the porch with the intention of hurting someone for striking his auto with the bat. Based on this evidence, the trial court instructed the jury on the accomplice theory of liability.*fn1
Appellant believes this charge was impermissible because he was never charged by information with being an accomplice.
Appellant admits that under the Penal Code of 1939, a person could be held guilty as an accomplice even though charged only as the perpetrator. See 18 Pa.C.S.A. App. § 5105. Appellant believes the new Crimes Code compels a different result. I do not agree.
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 ...