Nos. 287 and 347 January Term 1978, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia at Nos. 788, 790, and 791 November Term 1977
Alan M. Tabas, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Cynthia H. Severinsen, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Larsen, Flaherty and Kauffman, JJ.
Gregory Smith was convicted in a non-jury trial in Philadelphia of murder of the third degree, criminal conspiracy, possession of an instrument of crime, and possession of a prohibited offensive weapon. Post-verdict motions were denied and concurrent prison sentences were imposed. An appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. An appeal from the judgments of sentence imposed on the other convictions was filed in the Superior Court and later certified here.
Initially Smith contends the evidence presented at trial was insufficient to sustain the convictions.
The standard of review for evaluating sufficiency of the evidence is whether, viewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977). Viewed in this light, the record reveals the following:
On May 15, 1977, at approximately 10:30 a. m., Gregory Smith, the appellant, and Leon Mayo, engaged in a fistfight on South 46th Street in Philadelphia. Later that morning, Smith engaged in another fistfight in the same neighborhood with Jerry Crew. Smith left the scene of the second fight but warned he would return. After he tried unsuccessfully to locate his brothers, Smith joined several of his friends including Eugene Blocker and Alan Blocker. Smith's group went to Mayo's house and confronted Mayo, Crew, Darryl Hill, and several other youths. Smith and Crew resumed fighting in front of Mayo's house. After the police broke up their street fight, Smith and Crew continued fighting for twenty minutes or more in an alley behind the house. Mayo's sister broke up the alley fight, and Mayo's group walked to West Philadelphia High School where they
were again confronted by Smith and his friends. Smith told Mayo he wanted to continue the fight with Crew. Mayo explained Crew had not come with them because he did not want to fight anymore. Smith suddenly dashed toward the corner where Eugene Blocker stood and shouted, "now, now" while simultaneously making two downward motions with his right hand, index finger pointing. Thereupon, Blocker fired one shot from a gun striking the decedent, Hill, as he attempted to run from the scene. The police transported Hill to the hospital where he was pronounced dead as a result of a gunshot wound to the lung and heart.
Smith maintains the evidence was insufficient as a matter of law to establish he was "legally accountable" for Blocker's act of shooting Hill and possessing the gun. See 18 Pa.C.S.A. § 306.*fn1 Specifically, he maintains the evidence was insufficient to establish he had ...