No. 2024 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Luzerne County, at Nos. 1352, 1357, 1357-A, 1357-B, and 1367 of 1976.
John Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 289 Pa. Super. Page 360]
In this case the appellant, Ralph Smith, was tried before President Judge Brominski and a jury. He was convicted of theft by unlawful taking of a CB radio and conspiracy with respect to that offense, robbery and theft by unlawful taking, receiving stolen property, criminal conspiracy and conspiracy to commit arson. The court granted the appellant's motion in arrest of judgment as to the charge of conspiracy to commit theft of the CB radio and denied it as to all other charges. Appellant was sentenced to imprisonment for not less than five nor more than ten years for criminal conspiracy and five to ten years imprisonment for conspiracy to commit arson, the sentences to run concurrently. Sentence was deferred on the other charges.
Appellant was involved in bizarre and heinous offenses which were committed in the Hazleton area of Luzerne County on February 13 and 14, 1976. On February 13, 1976, at about 9:00 p. m., Mrs. Holak was alone in her home in Trucksville, Pennsylvania. The doorbell rang but she did not answer it as she was not expecting anyone at so late an hour. The doorbell rang again and as she went toward the front door she heard a loud noise coming from the area of the kitchen. She became frightened and telephoned her husband at his pharmacy where he was still working. As she put the receiver down she observed a black man standing in the living room who told her to keep her head down. He inquired as to where the money and the safe were located and she replied that she had neither a safe nor money. At the same time she also saw another man with a shotgun pointed towards her. The second man was described by Mrs. Holak as a big and bulky and was disguised by wearing a ski mask. The black man proceeded to tie Mrs. Holak's wrists and ankles with a cord from a venetian blind. He repeatedly stated to her "we don't want to hurt you, but we will if we have to. We want you to tell us where the money is and where the safe is." The intruders went into two of the three bedrooms of the Holak residence which were located on the first floor of the ranch type house and
[ 289 Pa. Super. Page 361]
searched through drawers and closets. Before the third bedroom was reached a horn sounded outside the house and the witness observed the two men run through the kitchen area and out of the house. Between forty and ninety dollars were taken by the intruders. A short time later Mr. Holak arrived home and the State police were called. The police arrived at about 9:30 within a few minutes of the call and found that the kitchen door had been smashed open.
The testimony established that Henry Magnum was the black man described in the incident and he testified that he went to Hazleton, Pennsylvania on February 13, 1976 and met with the appellant, a man who was 57 years of age, as well as with James Sandutch and James Mastrota. The four set out in the appellant's station wagon to a house targeted by Sandutch for breaking into as one containing illegal money and where the owner was reportedly on vacation. After observing the house they decided not to enter.
Subsequently, Mr. Smith drove the four occupants of the vehicle to the Holak residence at Mastrota's direction. Appellant parked the car and Mastrota instructed him to blow the horn if another car came along. Mastrota, Sandutch and Magnum then went to the house and when the doorbell was unanswered Mastrota kicked in the kitchen door and the three men entered. Mr. Magnum testified that while the three men were in the house in the process of robbing the victim, the appellant blew the station wagon horn according to the prearranged signal and the three fled the house.
The four then returned to Hazleton with Mr. Smith still operating his car as events had not turned out as they had planned in Trucksville. The men then stopped at Mastrota's house to obtain a glass milk bottle. Subsequently, they placed gasoline in the bottle which was to become a deadly firebomb later in the evening. Mr. Smith then drove the group to a parking lot next to a club known as Dino's Lounge. This was apparently sometime about midnight. Mastrota got out of the car and smashed the window of a parked automobile, removed a CB radio which he brought back to the appellant's car and gave to the appellant. Subsequently,
[ 289 Pa. Super. Page 362]
the four men drove to the Boyarski residence, with appellant still operating the car, which was located a few miles from Dino's. The purpose of this trip was to firebomb the Boyarski residence which crime had been planned by Mr. Sandutch sometime before. When they got to the house the appellant said that it was too early to firebomb the house as there were too many cars around and the lights were still on in the house. The group then decided to drive on to Weatherly. Apparently Sandutch had another "job" lined up in Weatherly but no crimes were committed there. Sometime after midnight the appellant became tired and went home. Mastrota's car was parked at appellant's home and after appellant retired to his house Sandutch, Mastrota and Magnum continued in Mastrota's car. At about 2:00 a. m. on February 14, 1976, the three men returned to the Boyarski residence and found the lights out. Mastrota threw the firebomb, consisting of gasoline in a milk bottle set off by a blazing rag, through a window of the Boyarski residence. The plan to firebomb the home had been made by Sandutch about a week before. Sandutch and Mastrota actually participated in the firebombing and Magnum remained in the car. Within minutes the home was an inferno. An eyewitness stated that: "every window looked like a blast furnace, upstairs and downstairs . . ." The fire was so intense that the furnishings in the dining room were totally consumed. As a result of the arson five members of the Boyarski family who were in the home at the time, perished.
Appellant testified in his own behalf that he had nothing to do with any of the criminal events described above and that on the contrary he was at Grace Upshaw's house playing cards from about 9:00 p. m. on February 13, 1976, to noon the next day.
On appeal, appellant presents four issues for our consideration: (1) the court below erred in refusing to grant appellant's motion for change of venue; (2) the court erred in admitting the transcript of the testimony of James ...