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COMMONWEALTH PENNSYLVANIA v. TYRONE E. JOHNSON (07/23/79)

submitted: July 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
TYRONE E. JOHNSON, APPELLANT



NOS. 96 and 97 Special Transfer Docket, Appeals from Judgments of Sentence of Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, Nos. 1814-1815 September Term, 1975.

COUNSEL

Lewis S. Small, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: Honeyman

[ 273 Pa. Super. Page 17]

Appellant was convicted by verdict of a jury of murder in the first degree and conspiracy in connection with the shooting death of a rival gang member. Post verdict motions were denied, and on March 14, 1977 appellant was sentenced to life imprisonment for the murder and a concurrent term of five years to ten years on the conspiracy. From these judgments of sentence he has appealed.

His first contention is that the evidence was insufficient to support the verdicts. We must review the record in a light most favorable to the Commonwealth and accept as true all the evidence of the Commonwealth and all reasonable inferences flowing therefrom, and then determine whether such is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes for which he stands convicted. See Com. v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Com. v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).

On September 1, 1975 appellant, then aged 19 years, participated in a plan with other members of his gang, the Mongo Nation, to intrude upon the turf of a rival gang, the Zip Gang. The purpose for such incursion was to incite

[ 273 Pa. Super. Page 18]

    pursuit by the Zip Gang and lure them into an ambush. Rudolph Edwards was one of the members of the Zip Gang that was lured into the waiting ambush, wherein he was killed by a rifle shot. Appellant did not do the actual shooting, but he stood beside the rifleman, a member of the Mongo Nation, who fired 17 or 18 shots at the members of the Zip Gang. The appellant had supplied funds for and had made arrangements for the purchase of the rifle ten days before the killing. The rifle had been procured following, and in response to, a prior attack upon a member of the Mongo Nation by a member or members of the Zip Gang. The members of the Mongo Nation who participated in the fray, including appellant, all returned to the rifleman's home after the melee, where appellant smilingly said ". . . it was like a holiday out there."

From the foregoing factual summary from the evidence, it is abundantly clear that appellant was a co-conspirator with the slayer and thus equally criminally responsible for the killing. See Com. v. Mobley, 467 Pa. 460, 359 A.2d 367 (1976).

Next appellant accuses the Assistant District Attorney of engaging in prosecutorial misconduct in four regards. We will address ourselves to each of these in turn.

First he accuses the prosecutor of "harassment" by requesting in camera hearings to determine whether appellant's witnesses had violated the trial judge's previous sequestration order. At the conclusion of such hearings, the trial judge did not utilize any punitive measures, but simply augmented his instructions to all the witnesses. The selection of a remedy for the violation of the sequestration order is in the sound discretion of the trial judge and will not be disturbed absent an abuse thereof. See Com. v. Smith, 464 Pa. 314, 346 ...


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