No. 80-3-530, Appeal from the Order of the Superior Court of Pennsylvania at Nos. 258 and 259 Special Transfer Docket entered on October 19, 1979 reversing in part and affirming in part the Judgment of the Court of Common Pleas of Luzerne County, Pennsylvania, filed at Nos. 391, 391-A, 597, and 597-A of 1977. Commonwealth v. Bachert,
O'Brien, C.j., and Roberts, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., did not participate in the consideration or decision of this case. Roberts, J., files a Concurring Opinion in which O'Brien, C.j., joins.
On June 2, 1977, William David Bachert was convicted by a jury of murder of the first degree, robbery, kidnapping, theft, and conspiracy to commit murder, kidnapping, robbery and theft. On appeal to the Superior Court,*fn1 Special Transfer Docket, the judgment of sentence of murder of the first degree was vacated and the case was remanded for a new trial at which the degree of guilt was not to rise higher than murder of the second degree. All other judgments of sentence were affirmed. Pro se allegations of ineffective assistance of trial counsel, who represented defendant on appeal, were remanded to the trial court with directions to appoint counsel to pursue defendant's pro se allegations. From this order, both the defendant and the Commonwealth filed petitions for allowance of appeal, both of which were granted.
The Commonwealth challenges the Superior Court's determination that there was insufficient evidence to support a conviction of murder of the first degree, specifically with regard to the element of "intent to kill."
It is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a
reasonable doubt. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). The evidence, viewed in this manner, establishes the following.
The defendant and his cohort, Charles Webber (herein Webber), spent much of February 1, 1977 drinking beer and whiskey in Pottsville, Schuylkill County, eventually driving off in Webber's van, traveling north on Route 61 to Interstate Route 81. The van either broke down or was parked on the right hand side of Route 61. Shortly after 6:30 P.M., a passing motorist saw the van and two men, one of whom she identified as Webber, who was hitchhiking at that time. The van was again observed in the early morning hours of February 2 in the same location by a state trooper who confirmed that it was registered in Webber's name.
At approximately 6:45 P.M. on February 1, the victim, Thomas Welsh, left his home in Port Carbon to drive north to Shenandoah to officiate a volleyball game. He drove his 1973 Chevrolet Impala, equipped with a citizen's band radio, in the direction of Route 61, which is the principal route from Port Carbon to Shenandoah. The victim, who normally would have reached the volleyball game at about 7:00 P.M. or 7:15 P.M., never arrived.
The victim passed the defendant and Webber on Route 61 on his way to Shenandoah and offered them a ride. Webber, armed with a 9 mm. Luger semi-automatic pistol, and defendant forced him to drive onto Interstate 81 North, proceeding forty and one-half miles to the exit for the Cross Valley Expressway connecting Interstate 81 with the City of Nanticoke, Luzerne County.
At approximately 8:00 P.M., the victim was observed by passing motorists on the Cross Valley Expressway near the entrance to Interstate 81 clenching his chest, staggering, and falling to one knee. Also at 8:00 P.M., a young couple were driving on the Cross Valley Expressway and were approaching the entrance to Interstate 81 when they spotted an "obstacle" in the road. The car straddled the obstacle which lodged beneath the car between the left and right tires. They drove the car to the side of the road, dragging
the obstacle beneath the car. Discovering that the obstacle was the victim, they jacked the car to relieve any pressure, called for an ambulance, and waited for help.
The victim was still alive and was heard to moan and complain of the cold but ultimately lost consciousness and was pronounced dead at 8:55 P.M. at the local hospital. He had three gunshot wounds, one of the chest, one of the right arm, and one of the left buttock.
The Coroner testified that the victim died of shock due to loss of blood, resulting from the gunshot wound of the chest, and that there were no crushing injuries to the body which would have occurred had the victim been run over by the automobile. There were lacerations and abrasions to the face, chest, arms, and legs, which, absent the gunshot wounds, would not have proved fatal. That the victim's wounds were inflicted by Webber's gun, found in his possession when arrested later that night, was established by a ballistics expert's testimony.
Webber and the defendant spent the late evening of February 1 drinking in a bar in Nanticoke, where they became acquainted with four other men. At about 1:30 A.M. on February 2, defendant, Webber, and the four men left the bar and drove the victim's car and a van to the coal strippings outside Nanticoke where they drank beer and smoked marijuana in the van. While there, Webber attempted to sell the victim's car. No one present being capable of paying even the nominal sum Webber sought, Webber was asked why he would sell it for so little. In response, Webber and defendant admitted that the car was stolen and that they had shot a man. At trial, three of the four other men testified that defendant repeatedly said " We shot a guy." Following the admission as to the shooting, and apparently sensing disbelief from the group, Webber pulled the handgun from his belt, displayed it and removed the clip which still contained two live cartridges. He ejected a third cartridge from the chamber, and counted these three remaining cartridges, implicitly noting the absence of three already-fired cartridges. When one of the four, Cyron,
asked to handle the gun, Webber was reluctant but was persuaded by another who stated "Go ahead and let him see it because he was in prison for firearms already." Thereafter, Webber again attempted to sell the car, and, there being no offers received, asserted that he would just "blow it up" as it was of no use to him. After careening through the banks of the stripping area and leaving the car stranded, Webber returned to the van, sold the car's citizen band radio to one of the four, and the group planned means of aiding Webber and the defendant in stealing another car. They left the area, eventually heading toward Wilkes Barre.
The defendant, Webber, and one of the four, Wilushewski, were dropped off. Eventually, these three attracted police attention and were arrested in Wilkes Barre and taken to police headquarters, the defendant and Wilushewski riding in a police van, Webber in a police cruiser. During the ride to headquarters, the defendant was quoted as saying: "I hope you know we are both in trouble now, so if you want to, stick up for yourself, or if you want to, help us out because we stole a car tonight and we shot a guy, we wasted a guy." The defendant then explained that he and Webber were hitchhiking when they were picked up by the victim, and that they compelled him to drive north on Interstate 81, ordered him to take an exit, told him to get out of the car, and that Webber shot him. Defendant then asked Wilushewski to aid him in fabricating an alibi that he was with the defendant in the bar in Nanticoke all afternoon and evening. Wilushewski refused and relayed this entire conversation to the police when he was removed from the police van.
The Commonwealth argues, first, that the Superior Court erred in declaring the evidence to be insufficient to establish guilt of murder of the first degree, and second, that the Superior Court erred in remanding for a new trial when the proper remedy was merely instatement, as a matter of law, of a conviction of murder of the second degree where the evidence amply established felony murder. Due to our resolution of the issue regarding sufficiency of the evidence,
and reversal of the order of the Superior Court, we need not address the Commonwealth's second argument.
Whether the defendant's repeated admissions that "We shot a guy" sufficiently constitute proof of a specific intent to kill, harbored by the defendant at the time of the shooting, is the issue to be resolved. To determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his state of mind; the requisite mental state must be proved beyond a reasonable doubt to be one which the accomplice harbored and cannot depend upon proof of intent to kill only in the principal. LaFave and Scott, Criminal Law, 1972. "[A] person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." 18 Pa.C.S.A. § 302(a). The trier of fact found that the defendant had the requisite mental state to convict of murder of the first degree and other charges. Such resolution of ...