No. 837 Philadelphia, 1980, Appeal from the Judgment of Sentence of March 14, 1980 in the Court of Common Pleas of Delaware County, Criminal Division, No. 426 Of 1979
Charles Nistico, Chester, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
Cercone, President Judge, and Rowley and Hoffman, JJ.
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Appellant was charged at informations Nos. 426A-426H of 1979 with murder, voluntary manslaughter and other lesser crimes. Of particular interest to this appeal is that, he was charged, at information No. 426G, with conspiracy with one John McCormick, to commit, or attempt to commit, or solicit to commit, murder, voluntary manslaughter, and involuntary manslaughter. While at No. 426H appellant was charged with conspiracy with one Robert Kane to commit, or attempt to commit, or solicit to commit aggravated assault, recklessly endangering another person, possessing an instrument of crime, and prohibited offensive weapon. Appellant proceeded to trial on the informations before a jury and was found guilty of conspiracy to commit voluntary manslaughter, conspiracy to commit aggravated assault, conspiracy to commit recklessly endangering another person and conspiracy to possess an instrument of crime; he was acquitted of all other charges. Post-trial motions were filed, argued and denied. On the charge of conspiracy to commit voluntary manslaughter appellant was sentenced to a period of five (5) to ten (10) years incarceration. A term of five (5) to ten (10) years imprisonment was also imposed on the count of conspiracy to commit aggravated assault. The court further imposed a period of one (1) to two (2) years for the conviction of conspiracy to recklessly endanger another. The sentence on the weapons offense was suspended. All sentences were to run consecutive with
[ 330 Pa. Super. Page 206]
each other. Therefore, appellant was sentenced to a total term of eleven (11) to twenty-two (22) years. Appellant appeals the judgment of sentence.
To properly understand the various issues raised by appellant we must first place the charges into the factual context in which they arose. In doing so, we accept as true the evidence as produced by the Commonwealth, the verdict winner.
On September 21, 1973, James Long was shot four times. He died of his wounds. James H. Colgan testified that two weeks prior to the shooting he was with appellant at a bar. They left the bar and drove in Colgan's car to the MacDade Mall. Appellant placed a rifle on the back floor of the vehicle. They parked the vehicle near the mall and proceeded to a group of hedges across the street from the mall. From there they were able to observe a group of members of a motorcycle club, known as the Warlocks, standing under a theatre marquee. Appellant took the rifle, which was equipped with a scope from the car, and observed the gang members through the scope. When Colgan asked what appellant was doing, appellant responded "I want to get a Warlock." After appellant indicated that the range was too great, the two men got in Colgan's car and drove to a different vantage point. There appellant from inside the car, once again looked through the gun sight of the rifle, aiming the gun at the club members. Colgan panicked and placed the car in gear preventing appellant from completing the act. Appellant complained to the effect that he (Colgan) was a coward. The two men returned to the bar.
On September 21, 1973, appellant was in the company of Robert Kane and John McCormick. The trio went driving around in Kane's automobile, with appellant being equipped with a .22 caliber semi-automatic rifle and scope. They passed the MacDade Mall where appellant saw one of the Warlocks, James Long. Appellant directed Kane to a dirt road where he then directed Kane to position the car. Appellant rolled down the window, stuck out the rifle, aimed at Long and fired four rounds. He then inquired of
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his two companions whether they saw the victim fly back. The three departed the area of the shooting and appellant proceeded to dismantle the weapon. The rifle was wiped off with oil and, then, the barrel was thrown into a pond and the stock was dropped from an overpass. The three went to a bar, frequented by members of another motorcycle club, other than the Warlocks, where appellant told various people there present of the deed that had just been performed.
Criminal proceedings were instituted by a complaint filed on February 16, 1979, followed by the informations filed on April 18, 1979.
We will address appellant's contentions in the same order in which he raises them on appeal. Appellant argues that the evidence was insufficient to demonstrate the existence of a conspiracy. To support such a claim, appellant refers us to several aspects of the case, which he believes demonstrates the weakness of the prosecution's case. He contends that the testimony of his alibi witness, Patrick Hodge, was unimpeached except for an improper reference to prior criminal conduct. Furthermore, Kane's testimony was discredited by the fact, of which the jury was advised, that he was testifying pursuant to a plea bargain.*fn1 Appellant contends that it is obvious that the jurors did not believe Kane, as the jury acquitted appellant of all the ...