No. 234 Special Transfer Docket, APPEAL FROM THE JUDGMENT OF SENTENCE IMPOSED FEBRUARY 17, 1978, OF THE COURT OF COMMON PLEAS - TRIAL DIVISION - CRIMINAL SECTION, FOR THE COUNTY OF PHILADELPHIA, JUNE TERM, 1976, NOS. 628 -630.
Richard E. Johnson, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* Manderino, J., files dissenting opinion.
Defendant was convicted of first degree murder and criminal conspiracy. A demurrer was sustained on possession of an instrument of crime. The defendant has appealed to the Supreme Court. The conviction is affirmed.
On August 17, 1975, at approximately 1:00 a. m., the defendant, Steven Blackburn, and co-defendant, Victor Jones, drove together to a playground at 12th Street and Susquehanna Avenue, Philadelphia, Pennsylvania, to collect a debt owed to the defendant by the deceased, Reed Alston. A fight erupted between the defendant and the deceased in an office at the playground and carried outside to the street. The co-defendant was present there and joined in the fight. The deceased was kicked and beaten by Blackburn and Jones. A chase, in pursuit of the deceased ensued, wherein the co-defendant heard someone behind him shout ". . . stop him . . . shoot him." The co-defendant
shot the deceased three times in the back, which caused his death. Another man, Christopher Black, was present when the deceased was shot.
The complaint was issued and a detainer lodged against the defendant by the Commonwealth of Pennsylvania on September 7, 1975. At this time, the defendant was being held by Ohio authorities awaiting trial for robbery in that jurisdiction. The defendant plead guilty to that charge on February 4, 1976; he was sentenced; and he was incarcerated. Extradition proceedings were then instituted and the defendant was returned to this jurisdiction on June 4, 1976. On June 12, 1976, a pre-trial motion to quash the information based on a Violation of Pennsylvania Rules of Criminal Procedure, Rule 1100 was argued and denied. The pre-trial hearing judge determined that the period of time during which the defendant was held in Ohio was such that it should be excluded from the one hundred and eighty day time period of Rule 1100 because of the unavailability of the defendant. The lower court concluded that due diligence was exercised in returning the defendant to Pennsylvania and that under the circumstances, no violation of defendant's right to a speedy trial occurred. The trial commenced on November 24, 1976, and ended December 1, 1976.
Post-trial motions were filed with the lower court on November 9, 1977, approximately eleven months after the verdict was returned. On February 17, 1978, after oral argument, the post-trial motions were denied and the defendant was sentenced to life imprisonment in the State Correctional Institution for first degree murder, and he was sentenced to five to ten years for conspiracy to run concurrently.
The first issue we address is whether the defendant's demurrer to the charge of conspiracy should have been granted. The defendant contends that the Commonwealth failed to present a prima facie case of conspiracy.
The Commonwealth may prove indirectly an agreement in order to establish the existence of a conspiracy: Commonwealth v. Holmes, ...