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submitted: January 20, 1984.


No. 01431 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2327-2331, May Term, 1980.


Alan Ellis, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Wieand and Hester, JJ. Brosky, J., filed a dissenting opinion.

Author: Hester

[ 336 Pa. Super. Page 6]

Appellant, Ronald Johnson, perfected this appeal from the judgment of sentence entered November 12, 1980. He was convicted by jury of second-degree murder, criminal conspiracy and robbery. A life sentence was imposed on the murder bill; the criminal conspiracy bill brought a concurrent sentence of not less than five nor more than ten years' imprisonment. Inasmuch as robbery merged with second-degree murder, no sentence was imposed on the robbery bill.

It is appellant's first contention that the evidence was insufficient to sustain the verdict with respect to murder of the second degree. According to appellant, the victim was shot and killed by one Galin Tate following the departure of appellant and his accomplices from the scene of the robbery. The killing facilitated neither the robbery nor the escape. Since the murder was not in furtherance of the criminal plan to commit robbery, appellant argues that his

[ 336 Pa. Super. Page 7]

    murder conviction through application of the felony murder rule was without evidentiary basis.

This argument necessitates a review of the facts. On July 12, 1979, shortly after midnight, Gloria Oree, a man known only as Jibreel, Donald Colefield and Bruce Porter were in the basement of Loretta Turner's home at 1232 West College Avenue in Philadelphia.*fn1 Ms. Turner's eight-year-old daughter, Kadijra, was sleeping on the second floor.

Immediately after Jibreel left to purchase cigarettes, appellant, Galin Tate, Anthony Murray and a fourth man knocked on the front door. Porter opened the door, and the men abruptly entered with Tate wielding a single-barrel shotgun and Murray brandishing a double-barrel shotgun. Appellant and the fourth man were unarmed at that moment.

Colefield walked to the first floor upon hearing the intruders. As he arrived, Colefield was ordered by Murray to face the wall and submit to a search. Murray and appellant searched Colefield for valuables while Porter argued with Tate. Shortly thereafter, Murray searched the second floor while appellant and Tate detained Colefield and Porter.

When Murray returned to the first floor, having uncovered nothing of value, Tate inquired of Colefield where the amphetamine and money were kept. Realizing that Ms. Oree possessed cash, Colefield directed them to the basement. Murray retrieved $200.00 in cash from a table without knowing that Oree was hiding behind the furnace.

As Murray emerged from the basement, he continued out the front door with appellant and the fourth man. Tate remained behind to caution Porter not to obstruct their future visits. Porter reluctantly pledged his cooperation, making it apparent that he had no choice while Tate was armed with a deadly weapon. Tate departed. Apparently piqued by Porter's earlier resistance, Tate returned within

[ 336 Pa. Super. Page 8]

    seconds and fired the single-barrel shotgun into Porter's midriff. Porter died shortly thereafter.

Whether appellant was standing on the stoop or three blocks from the residence at the moment Porter was killed is of no consequence. Conversely, if there was evidence that appellant voluntarily abandoned the conspiratorial plan prior to Tate's return to shoot Porter, or that Tate's act was not in furtherance of the robbery, then there was insufficient evidence to convict appellant of murder.

Persons, other than the slayer, are criminally liable for a homicide committed in the perpetration of a felony, providing there is a conspiratorial plan formulated by them and the slayer to commit the underlying felony, and the homicide was in furtherance of the felony. Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980); Commonwealth v. Allen, 475 Pa. 165, 379 A.2d 1335 (1977). The Pennsylvania Supreme Court reflected upon the policy for holding a co-conspirator responsible for murder occurring during the commission of statutorily-designated felonies:

Commonwealth v. Legg, 491 Pa. 78, 82, 417 A.2d 1152, 1154 (1980).

Whether Porter's death was in furtherance of the conspiracy was for the jury's determination. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974). Additionally, it is immaterial whether appellant actually expected Porter's death. He may be charged with knowing that death would result from the robbery. Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975). In this latter instance, he remains responsible for the murder.

[ 336 Pa. Super. Page 9]

Appellant's contention is that disunity as to time and purpose made the robbery and homicide distinct. We disagree. There was evidence that less than one minute passed from the moment appellant departed the scene to the fatal shooting. We are of the opinion that this was a negligible passage of time during the furtherance of the conspiracy; it did not represent the termination of the robbery nor appellant's abandonment of the scheme.

In Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926), one co-defendant had been detained by police officers shortly after he and his accomplices began their retreat from the robbery scene. Following the co-defendant's capture, but during the chase of accomplices, a police officer was mortally wounded. In considering the co-defendant's capture as having no effect on his culpability for murder, the Doris court opined:

[Doris' arrest prior to the murder] overlooks the fact that he joined in the common design, and is responsible for the acts of each naturally to be expected to occur in carrying it out. It is true that he could have abandoned the enterprise, and given sufficient time to the others to do likewise, and thus have relieved himself from liability for subsequent acts of his fellows. But he cannot escape responsibility for an act which is the probable consequence of the criminal scheme which he has helped to devise and carry forward.

Id., 287 Pa. at 551-552, 135 A. at 315. Despite his capture, the Doris court held that the defendant did not withdraw from the scheme. No appreciable period of time passed between the conspired robbery and the resulting homicide. Consequently, the defendant was criminally liable while he remained in police custody and until the enterprise concluded.

Whether fleeing from the scene exonerates an accused from criminal acts committed by accomplices during the accused's flight was addressed in Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971):

[ 336 Pa. Super. Page 10]

The guilt of one engaging in an unlawful enterprise consists in part in the encouragement and support that he gives to those who commit the crime; and the influence and effect of such encouragement continue until he withdraws the encouragement by acts or words showing that he disapproves or opposes the contemplated crime. He ...

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