No. 450 January Term, 1979, Appeal from Judgment of Sentence of Court of Common Pleas, Criminal, Philadelphia County, Imposed on August 15, 1979 at Nos. 856-857 March Term, 1978 and Nos. 2306-2307 May Term, 1977
William T. Cannon (Court-appointed), Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Michele Goldfarb Lehr, Steven Cooperstein, Asst. Dist. Attys., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a dissenting opinion. Nix, J., filed a dissenting opinion.
On November 22, 1978, a jury convicted appellant James Horner of murder of the third degree, criminal conspiracy and simple assault for his participation in the shooting death of Robert Mendel and the assault on his wife, Nancy Mendel. Appellant was subsequently sentenced to concurrent terms of imprisonment of 8 1/2 to 17 years for the murder, 3 to 6 years for the conspiracy, and 1 to 2 years for the assault. Post-verdict motions were denied and this direct appeal followed.*fn1
I. Appellant first contends that the evidence is insufficient to support his conviction for murder of the third degree. Since it was undisputed that appellant did not fire any of the shots which hit Robert Mendel, the Commonwealth proceeded to establish appellant's guilt based upon a theory of conspiracy. Appellant argues, however, that the evidence was insufficient to establish the existence of such a conspiracy.
The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt.
Commonwealth v. Pitts, 486 Pa. 212, 215, 404 A.2d 1305, 1306 (1979) (citations omitted). The record, viewed in the light most favorable to the Commonwealth, reveals the following facts:
Robert and Nancy Mendel and their children lived next door to James and Geraldine Stetler, their children, and several children from Geraldine's prior marriage to appellant; appellant was a frequent visitor to the Stetler home. The Mendels and the Stetlers lived in adjoining homes which shared a party wall and a landing outside their front doors,
and there was a history of discord between the two households.
At trial, appellant's friend, Mrs. Karol Ann Schwarz, repeated a conversation which took place while she and appellant were returning to Philadelphia from a New Jersey motel on May 2, 1977. At that time, appellant told Mrs. Schwarz that he was in a hurry to get home because he had to pick up a friend, Edwin Meredith, and that he and Meredith were going to Geraldine's house "to plan how to take care of the Mendels once and for all." According to Mrs. Schwarz, appellant stated that "Mr. Meredith had experience in things like this, that when you wanted someone knocked off, he was the one to get. And even the fact maybe that it would cost him [appellant], it was worth it to get rid of him [Mendel], of the problems." Mrs. Schwarz further testified that one week after the shooting, appellant admitted to her that on the evening of May 7, 1977, he and Edwin Meredith had gone next door to the Mendel home "because they wanted to start an argument, a fight, and . . . they knocked at the door, but Mr. Mendel didn't come to the door, Mrs. Mendel did."
Further testimony at trial revealed that on the night of the shooting, appellant and Edwin Meredith went to the Mendel home and banged on the door. When Nancy Mendel came to the door, appellant shouted into the house, "You fat m/--f/--, you're going to get it now." The men then opened the door, pulled Nancy Mendel out of her house and began beating her. In response to his wife's screams, Robert Mendel came out of the house and succeeded in getting his wife and himself back inside.*fn2 As the Mendels reentered their home, Edwin Meredith shouted after them, "Now we're going to get you." After Nancy Mendel had spoken by telephone with the police, she and her husband went out onto the landing in front of their house to wait for the police to arrive. While they were waiting, Edwin Meredith opened
the door of the Stetler home and pulled Robert Mendel into the house, where James Stetler and David Horner (appellant's fifteen-year-old son) were waiting to shoot him with a .22 caliber rifle and a high-powered .308 caliber rifle.
All theories that are recognized under our law to hold one responsible for the criminal acts of another require the existence of a shared criminal intent. It is well settled that the nexus which renders all members of a criminal conspiracy responsible for the acts of any of its members is the unlawful agreement.
Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972).
In this case, in view of appellant's role in procuring the assistance of Edwin Meredith to "get rid of" Robert Mendel, and his participation in starting a fight with the Mendels immediately before the shooting, there was sufficient evidence to establish the fact that ...