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submitted: July 23, 1979.


Nos. 73 and 74 Special Transfer Docket, Appeals from Judgments of Sentence of Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County. Nos. 531, 534 July Term, 1976.


James J. Binns, Philadelphia, for appellant.

Paul S. Diamond, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Honeyman

[ 270 Pa. Super. Page 362]

Appellant was convicted of murder in the third degree and conspiracy after a jury trial. Post trial motions were refused and appellant received a sentence of five years to twenty years imprisonment for the murder plus a consecutive one year to ten year term in prison for the conspiracy. It was further directed that both sentences were to run consecutively to any other sentence that appellant was then serving. From judgments of sentence these appeals were taken. Appellant challenges only the sufficiency of the evidence to support his convictions and the admissibility of his statements.

With respect to the issue concerning the sufficiency of the evidence, the following is a fair summary of the salient facts. On the evening of June 28, 1976, appellant and Clarence Barnes, both members of the "Taylor Street Gang," along with other gang members, went to the 1600 block of Ringgold Street in Philadelphia. Appellant's motivation for going was to settle a grudge with one, Clarence Richardson, stemming from an earlier stabbing incident. The group encountered his brother, Lionel Richardson, sitting on a stoop with some friends. An argument ensued about Clarence Richardson and appellant became angry and challenged Lionel and then a friend of Lionel's to a fight. They refused and the Taylor Street Gang withdrew to the 1400 block, where one of them obtained a gun. Clarence Barnes took the gun for the avowed purpose of shooting Lionel and/or his friends, and led the Taylor Street Gang back to the 1600 block. Appellant was immediately beside Barnes when he fired the gun a number of times at Lionel. Lionel was killed by a shot in the back of the head. Appellant, at the scene, threatened a witness, telling him not to "tell something . . . or I'll get you." Appellant received a flesh wound in the right arm from a bullet fired by an unknown or unidentified person.

Viewing the facts in a light most favorable to the Commonwealth, with all reasonable inferences flowing therefrom belonging to the Commonwealth, there was ample

[ 270 Pa. Super. Page 363]

    evidence to support the verdict. Appellant contended that he was merely present at the scene of the slaying. The evidence shows that he certainly was present, but it also shows that he was an active participant in an ongoing criminal conspiracy with his fellow gang members that culminated in the murder of Lionel Richardson. Thus, he was equally culpable with Barnes therefor. See Com. v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) and Com. v. Mobley, 467 Pa. 460, 359 A.2d 367 (1976).

The other basis for this appeal is that it was error to admit into evidence the statements obtained by the police from appellant because he did not knowingly and intelligently waive his Miranda rights and because the statements were the product of an unnecessary delay between his arrest and arraignment. The following sequence of events took place after Richardson was killed and appellant was wounded. Appellant was taken to the hospital by police at 9:10 p. m. and given emergency treatment. At 11:10 p. m. he was transferred to the Police Administration Building and placed in an interrogation room. He was warned of his Miranda rights at 11:35 p. m. and he waived them, whereupon interrogation by the police began. Appellant appeared to be alert and responsive and made no complaints about being in distress or in need of further medical attention. Appellant at that time was 19 years of age. His mother was with him at the hospital and accompanied him to the Police Administration Building. However, there she was prevented from further speaking with her son. A formal signed written statement was commenced at 11:35 p. m. and executed by appellant at 4:30 a. m. on June 29th. After that, appellant was left alone until 6:30 a. m. when he was moved to a cell. At 7:20 a. m. he was returned to the interrogation room and informed that Lionel Richardson had died and that he could be charged with murder. When asked if he wished to add to his previous statement, appellant merely replied "I didn't do it." His arraignment took place at 12:45 p. m. on June 29, 1976. At the conclusion of a suppression hearing, the motion to suppress the statements was refused, based upon findings

[ 270 Pa. Super. Page 364]

    that appellant had knowingly and intelligently waived his Miranda rights and that there was no nexus between the delay in his ...

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