No. 145 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County, No. 503 of 1977.
John M. Humphrey, Williamsport, for appellant.
Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
Wieand, Beck and Montemuro, JJ.
[ 313 Pa. Super. Page 525]
Milton Scarborough was tried jointly with Robert Hubble on charges arising from the killing of Mrs. Claire Kepner and her two small children by persons who broke into their Lycoming County home and took approximately eighty ($80.00) dollars. A jury found Scarborough guilty of burglary, robbery, theft, conspiracy and three counts of murder in the third degree.*fn1 Post verdict motions were denied, a sentence of imprisonment was imposed, and this appeal followed. Scarborough contends that the evidence was insufficient to sustain the jury's finding that he participated in the commission of the crimes against Mrs. Kepner and her children. He also argues that he was unfairly prejudiced by having the charges against him consolidated with those against Robert Hubble for purposes of trial and that extra-judicial statements made by David Hubble were improperly admitted against him. For reasons appearing in this opinion, we affirm the judgment of sentence.
In reviewing the sufficiency of the evidence to sustain the convictions, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove the elements of the crimes charged and that appellant committed those crimes beyond a reasonable doubt. Commonwealth v. Bachert, 499 Pa. 398, 402, 453 Pa. 931, 933 (1982); Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982);
[ 313 Pa. Super. Page 526]
the children.*fn3 Appellant did not deny or refute in any way what David Hubble had said. Robert Hubble remonstrated with his brother, however, telling him to "shut the f___ up."
Other evidence produced by the Commonwealth showed that the approximate sum of eighty dollars had been taken from the Kepner home and that Mrs. Kepner and her two small children had been shot to death with the same .32 caliber pistol. The abdomen of one of the children had been slashed repeatedly with a knife.
This evidence was sufficient to sustain appellant's convictions. He had been the driver of the vehicle used to get to and escape from the scene of the crime. It was he who, at the request of Robert Hubble, had pulled the car into the Kepner driveway and accompanied Robert and David Hubble into the home. He was present and participated in the robbery and made no attempt to prevent the killings. Thereafter, he drove to the bar where stolen money was used to purchase more beer before returning to the "shack." Thus, although the evidence did not show that appellant had committed the actual killings, he was present and actively participating in the burglary and robbery at the Kepner home. He was vicariously liable criminally for the acts committed by Robert and David Hubble in furtherance of the common scheme to rob Mrs. Kepner and take her money. See: 18 Pa.C.S. §§ 306, 2501(a). See also: Commonwealth v. Tate, 485 Pa. 180, 185, 401 A.2d 353, 355 (1979); Commonwealth v. Roux, 465 Pa. 482, 490, 350 A.2d 867, 871 (1976); Commonwealth v. Darden, 311 Pa. Super. 170, 173, 457 A.2d 549, 550 (1983); Commonwealth v. Plusquellic, supra, 303 Pa. Superior at 5, 449 A.2d at 50. See generally: Commonwealth v. Davenport, 307 Pa. Super. 102, 110, 452 A.2d 1058, 1062 (1982).
"Questions of consolidation or severance of defendants for trial [rest] in the discretion of the trial judge and his rulings on such ...