No. 802 January Term 1977, Consolidated appeal from Judgment of Sentence and from Order denying a new trial of the Court of Common Pleas of Montgomery County at No. 656 July Term 1973.
A. Richard Gerber, Norristown, for appellant.
William T. Nicholas, Dist. Atty., Ross Weiss, Asst. Dist. Atty. (1st), Eric J. Cox, Asst. Dist. Atty., John Burfete, Norristown, for appellee.
Eagen, C. J., and O'Brien, Nix, Manderino and Larsen, JJ. Manderino, J., filed a concurring opinion. Nix and Larsen, JJ., filed dissenting opinions. Roberts, J., and Pomeroy, former J., did not participate in the consideration or decision of this case.
On October 30, 1975, Ralph Waldman was convicted by a jury in the Court of Common Pleas of Montgomery County of murder of the first degree, aggravated assault, robbery, theft of movable property, criminal conspiracy, terroristic threats and two counts of simple assault. Post-verdict motions were denied, and judgment of sentence of life imprisonment was imposed on the murder conviction.*fn1 On May 14, 1976, Waldman appealed the judgment of sentence of life imprisonment to this Court.
On September 30, 1976, Waldman petitioned this Court for an order to grant a rule for a new trial on the basis of after-discovered evidence. We remanded the matter to the trial court for an evidentiary hearing. After an evidentiary hearing, oral argument and consideration of the briefs submitted by counsel, the trial court denied Waldman's petition for a new trial. This appeal is a consolidated appeal from that order and from the judgment of sentence of life imprisonment on the murder conviction.
Waldman advances various claims which seek discharge or the grant of a new trial. We will only discuss three of these claims.*fn2
Initially, Waldman claims the evidence presented at trial is insufficient to support the jury's verdict of murder of the first degree.*fn3 In evaluating the sufficiency of the evidence, the test is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Santiago, 476 Pa. 340, 382 A.2d 1200 (1978); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976); Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976). Moreover, in applying this test, the entire trial record must be evaluated and all evidence actually received must be considered, whether or not the trial court's rulings
thereon were correct. Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Furthermore, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975).
Viewed in this light, the record reveals the following: On July 22, 1973, Waldman and fellow members of the Breed Motorcycle Club attended a memorial service at the Hillside Cemetery in Abington Township, Montgomery County. At 5:30 p. m., approximately twelve cyclists and three passengers exited the cemetery and proceeded north on Easton Road along with a pick-up truck and an automobile. Subsequently, Waldman and fellow Breed cyclists, along with the pick-up truck, stopped for a red light at the intersection of Easton Road and Moreland Road. A lone cyclist and a female passenger, travelling in a south bound lane of Easton Road, were stopped for the same red light. The operator of the motorcycle in the south bound lane, later identified as Michael Trunk, was a former member of the Breed Motorcycle Club but, at that time, an active member of the rival Pagan Motorcycle Club.
A number of Breed cyclists crossed over into the south bound lanes of Easton Road in an attempt to encircle the lone motorcycle. Trunk and his passenger, Debra Trezona, recognized the approaching cyclists as members of the rival Breed. Trunk then accelerated through the intersection despite the red light and fled south on Easton Road. Some, perhaps all, of the Breed cyclists pursued Trunk and Trezona at speeds reaching sixty-five to seventy miles per hour. In an attempt to elude the pursuing Breed cyclists, Trunk veered to his right and drove through a gasoline station located on the northwest corner of Easton Road and Brookdale Road. As Trunk's motorcycle reached Brookdale Road, which is approximately 1.22 miles south of Moreland Road, a single gunshot was fired from the midst of the pursuing cyclists. The bullet grazed Trezona's helmet and struck
Trunk's head above and behind his left ear. Moments later, Trunk died.
Immediately, two Breed cyclists approached Trunk's downed motorcycle. One of the approaching cyclists, who "sort of look[ed] like [Waldman],"*fn4 was operating a cranberry red motorcycle and was accompanied by a female passenger having light brown shoulder length hair and wearing a light blue sweater. This cyclist, after ordering another Breed cyclist to take Trunk's "colors,"*fn5 demanded Trezona's "colors." After a third demand by this individual, Trezona removed her "colors" and threw them on the cranberry red motorcycle. After securing both the victim's and Trezona's "colors," the operator of the cranberry red motorcycle and his female passenger, in the company of two other cyclists, headed north on Easton Road.
At approximately 5:35 p. m., a group of Breed cyclists were talking and slowly travelling in a northerly direction on Easton Road. They subsequently stopped for a red light at the intersection of Easton Road and York Road. This intersection is approximately 1.4 miles from the scene of the shooting. Moments later, this same group of cyclists traveled north on Mill Road. Mill Road connects York Road with Easton Road.
The Breed cyclists continued in a northerly direction on Mill Road and entered a gasoline station located at the intersection of Easton Road and Mill Road, approximately
.8 miles from the scene of the shooting. While three or four of the motorcycles were being serviced, some Breed cyclists dismounted and walked around the premises of the gasoline station. Waldman and a female passenger rode his motorcycle to an area which was about five feet from a metal trash dumpster located at the rear of this gasoline station.*fn6 Subsequently, the police searched this metal trash dumpster and recovered a revolver which was ultimately identified as the source of the bullet which fatally wounded Trunk. Approximately five minutes after arriving at the gasoline station, the Breed cyclists exited the station onto Easton Road and traveled in a southerly direction toward the Willow Grove Interchange of the Pennsylvania Turnpike.
At approximately 5:55 p. m., Waldman, travelling alone in a northerly direction, stopped for a red light at the intersection of Easton Road and Meeting House Road. This intersection is approximately 1.1 miles from the gasoline station where the Breed cyclists had their motorcycles serviced. When a police vehicle approached Waldman, he executed a sharp U-turn onto one of the southbound lanes of Easton Road. A high-speed chase ensued. Waldman was eventually placed under arrest when he stopped his dark red or maroon motorcycle about one hundred yards south of the intersection of Hatboro Pike and Easton Road. When arrested, Waldman had a darker complexion than at trial; stood five feet nine inches in height; and had long hair and
a slight beard.*fn7 Waldman was eventually transported to the Abington Township Police Station.*fn8
At approximately 6:00 p. m., seven Breed cyclists and two female passengers were detained by the police at the Willow Grove Interchange of the Pennsylvania Turnpike. They were the same cyclists who had their motorcycles serviced at the gasoline station. Among the group detained at the Willow Grove Interchange were Waldman's girlfriend, Susan Disario, and the President of the Pennsylvania Chapter of the Breed, Walter Carl Rehm, Jr. Disario, whose brown hair extended to the nape of her neck, was wearing a blue sweater over a shirt with a white background. At approximately 6:40 p. m., Trezona was transported to the turnpike interchange. After viewing the Breed cyclists, she indicated the cyclist who demanded and took both her and Trunk's "colors" was not in the group. However, in a general way, she identified all of the cyclists who were detained at the interchange as having been at the scene of the shooting. The seven cyclists and two female passengers were eventually escorted to the Abington Township Police Station.
At the Abington Township Police Station, Waldman, also known as "Marlboro," was placed in cell number one. Francis Markey, a Commonwealth witness at trial, was imprisoned in cell number two. Markey, a friend of Trunk and Trezona, was a bystander arrested at the scene of the shooting for carrying a concealed deadly weapon. Rehm, also known as "Little Buddy," was placed in cell number three.
While Markey occupied cell number two (the cell between Waldman and Rehm), the following conversation took place between Waldman and Rehm:
Rehm: "Is that you Marlboro?"
Waldman: "Yeah, that's me. Is that you Little Buddy?"
Rehm: "Yeah, that's me. You got yourself ...