No. 258 special Transfer Docket, No. 259 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, at Nos. 391, 391-A, 597, and 597-A of 1977.
Patrick J. Flannery, Assistant Public Defender, Wilkes-Barre, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn* Wieand, J., files a concurring and dissenting opinion.
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Appellant, William Bachert, was convicted by a jury of first degree murder, criminal conspiracy, theft by unlawful taking, kidnapping and robbery, with the jury recommending a life sentence on the murder conviction. Five issues are raised for our consideration, the first of which concerns the sufficiency of the evidence to support the murder verdict.
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).
Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).
Appellant and his accomplice, Charles Weber, spent much of February 1, 1977 drinking various alcoholic beverages near Pottsville. Early in the evening, Weber's van in which both men were riding apparently either broke down or was parked along side the northbound lane of Route 61 near the Frackville entrance to Interstate Route 81. A passing motorist saw the van and two men, one of whom she identified as Weber, as she passed them on Route 61 shortly after 6:30 p. m. About 6:45 p. m., the victim -- Thomas R. Welsh -- left his Port Carbon home. The victim drove past appellant and Weber on Route 61 and either offered them a ride or was stopped by them. Appellant and Weber forced Welsh to
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drive onto Interstate 81 North and exit forty-one miles later on the Cross-Valley Expressway near Nanticoke. At 8 p. m., two men driving on the expressway saw the victim in the opposite lane clench his chest trying to walk, stagger, fall to one knee and hold his stomach. By the time they had turned their car around, the victim had crossed the highway, collapsed in a lane of traffic, and had been struck and dragged several feet by a car. At 8:20 a volunteer ambulance squad arrived and took the victim to the hospital where he died at 8:40 p. m.
Weber and the appellant spent the late evening of February 1 drinking in a bar in Nanticoke with four other men. At about 1:30 a. m. on February 2, appellant, Weber, and the four men left the bar and drove to the "strippings" outside Nanticoke where they drank beer and smoked marijuana in the van of one of the new acquaintances. Weber showed the men his pistol and appellant twice bragged about shooting and killing someone earlier that evening. Specifically, appellant stated "we killed a guy" or "we shot a guy." These statements were confirmed by all four men at trial. Weber removed the CB radio from the victim's car, sold it to one of the men, and then crashed the car against and around the strippings' banks. All six men then left the area looking for another car to steal and ended up in Wilkes-Barre where appellant, Weber and Stanley Wilushewski, one of the four men, were dropped off. These three were arrested in Wilkes-Barre after the driver of the cab they were riding in told police that Weber was armed.
During the ride to police headquarters in a police van, appellant attempted to persuade Wilushewski to help him cover up the evening's earlier events. Appellant was quoted as saying: "I hope you know we are both in trouble now, so if you want to stick up for yourself or if you want to help us out because we stole a car tonight and we shot a guy, we wasted a guy." When asked what he meant by the term "wasted a guy", the appellant responded "we shot a man." Appellant then explained that he and Weber had been hitchhiking, received a ride from the victim, compelled him
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to drive north on Interstate 81, ordered him to take an exit, told him to get out of the car, and then Weber shot him. Wilushewski relayed this entire conversation to the police when he was released from the police van.
The exact cause of death was established by Coroner Dr. George Hudock who testified that the victim "died due to shock due to the loss of blood, mainly due to the gunshot wound of the chest," but also due to "lost blood when he was shot in the arm [and] shot in the left buttock." Dr. Hudock further testified that although the victim had been dragged by a car causing lacerations and abrasions to the victim's face, chest, arms, and legs, these wounds were insufficient to cause death. He also testified that there was nothing to indicate that the wheels of the car had contacted with the victim's body because there were "no crushing injuries to the body." He concluded by stating unequivocally that the victim died from the gunshot in his chest.
A state trooper, qualified as a small arms expert, testified that based on various ballistics tests Weber's gun was the weapon used to shoot the victim.
Appellant attacks the sufficiency of the evidence from two standpoints. First, appellant contends that he cannot be convicted of first degree murder because at most, he was an accomplice and did not personally shoot the victim. The law of Pennsylvania is settled that one may be guilty of first degree murder even though one does not perform the immediate act resulting in death. Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978). In Commonwealth v. Vaughn, 459 Pa. 35, 39-40, 326 A.2d 393, 395 (1974), the Supreme Court held:
The above evidence and the reasonable inferences arising therefrom were sufficient to establish that the appellant was guilty of murder even though another struck the fatal blow. When there is evidence that one, who has not struck the fatal blow, has, nonetheless, shared in the criminal intent and the criminal activity, that person has aided and abetted in ...