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COMMONWEALTH PENNSYLVANIA v. GLENN A. TATE (05/01/79)

decided: May 1, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GLENN A. TATE, APPELLANT



No. 74 March Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7703798, entered on the 21st day of April 1978, also No. CC7703917.

COUNSEL

John H. Corbett, Jr., Asst. Public Defender, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., concurs in the result. Manderino, J., filed a dissenting opinion.

Author: Larsen

[ 485 Pa. Page 182]

OPINION

On November 1, 1977, following a jury trial, appellant was found guilty of murder of the second degree (felony murder), robbery and criminal conspiracy. After post-verdict motions were denied, appellant was sentenced to life imprisonment for the murder conviction. Sentence was suspended on the robbery and criminal conspiracy convictions. This appeal follows wherein appellant raises three contentions, all of which are without merit.

Appellant's first contention is that there was insufficient evidence to support his criminal conspiracy conviction.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. 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. The factfinder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Viewed under this standard, the evidence presented at trial established the following facts: On the evening of February 13, 1977, Kevin Stanley, Eugene (Bud) Nixon, and appellant left the home of Nixon's sister located in the

[ 485 Pa. Page 183]

Northside. The three men had agreed to "rob something" and then "split the proceeds". After cruising the Northside and finding no target of opportunity, the three men drove to Duquesne, Pennsylvania. The Avenue News Store in Duquesne, Pennsylvania, was suggested by Stanley as a target and the threesome agreed to rob that store. Stanley and appellant waited in the parked car while Nixon took a gun from the glove compartment and headed toward the store. Nixon found the Avenue News Store was closed. On his way back to the car, Nixon accosted the victim, Richard Calkusic, in an alley behind the store and decided to rob him. The victim struggled and was shot and killed by Nixon. Nixon returned to the car, explained what had happened and the threesome drove back to the Northside.

The Commonwealth has the burden of proving, by direct or circumstantial evidence, the existence of shared criminal intent, for, the essence of a conspiracy is an agreement to commit an unlawful act.*fn1 Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972). "[W]hile more than mere association must be shown, '[a] conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of coconspirators have uniformly been held competent to ...


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