No. 60 Philadelphia, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, or Bucks County, at No. 100 of 1981
John J. Kerrigan, Jr., Newton, for appellant.
Robert E. Goldman, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Del Sole, Montemuro and Hoffman, JJ.
[ 332 Pa. Super. Page 609]
This is an appeal from a judgment of sentence. The appellant, George Gregory Orlowski, and his co-defendant, Victor Hassine, were tried in the Court of Common Pleas of Bucks County before the Honorable Paul R. Beckert and a jury. The appellant was found to be guilty of the first degree murder*fn1 of James Puerale, and the attempted murders*fn2 of Albert "Skip" Kellet, Jr., Lois Kellet and George Sofield, and multiple counts of criminal conspiracy*fn3 and criminal solicitation.*fn4
The jury returned a sentence of life imprisonment on the conviction of first degree murder. Post-verdict motions for a new trial and in arrest of judgment were filed by the appellant, and the issues therein fully briefed and argued to the court. These motions were denied. On January 4,
[ 332 Pa. Super. Page 6101983]
, the appellant was sentenced to life imprisonment and various concurrent terms of imprisonment. This appeal followed.
The appellant raises several allegations of error which we find to be without merit.
The first of the appellant's grievances to be addressed is his assertion that the Commonwealth failed to produce sufficient evidence to sustain his convictions. If the evidence is insufficient, as alleged, it is a defect in quality, not in quantity, for the Commonwealth spared no effort in the prosecution of this case, producing the testimony of more than thirty witnesses in a jury trial that spanned some nine days and eighteen hundred pages of testimony. Two defects are alleged: the first, that the evidence demonstrated a more compelling motive to kill Kellet on the part of appellant's co-defendant, Vicor Hassine; the second, that the Commonwealth did not sufficiently establish the appellant's criminal liability on either a conspiracy theory or accomplice liability theory because the evidence showed that appellant only wished to have Kellet "beaten up", and not killed.
By whatever selective reading process these arguments were derived, we cannot tell, but our thorough review of the evidence convinces us that the evidence was sufficient to establish each and every element of the crimes for which the appellant was convicted under the standard set forth in Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert. denied, Pennsylvania v. Lovette, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983):
The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. [citations omitted].
[ 332 Pa. Super. Page 611]
This tale begins in the remote passages of the appellant's youth and unfolds to a tragic denouement. The appellant was a young boy when he became apprenticed to Albert Kellet, Sr., proprietor of the Kellet Family Market in Fallsington, Bucks County. The appellant was a butcher's boy doing odd jobs and cleaning the market while being taught the intricacies of the trade. He was trained and nurtured by the senior Kellet to such an extent that he was like a member of the family; almost like a brother to Kellet's natural son, Albert, Jr., also known as "Skip." Skip also worked at the family market but growing differences between him and his father caused him to seek employment elsewhere, while the appellant remained.
Since they were reared as brothers, the appellant and Skip had their "good and bad times." It would seem that their situation could be characterized as either fighting or between fights. On several occasions, their fights stemmed from drug deals which had soured.
In 1975, the senior Kellet sold the store. The appellant went with the new owners "like a piece of equipment," and he continued to run the meat department. At some point in the late seventies, the appellant rented the store and operated it himself. He also began operating a small side business -- dealing in marijuana and methamphetamine. Coincidentally, Skip Kellet engaged in a similar sideline.
Enter Victor Hassine, the young scion of a wealthy emigre family which had some real estate holdings in the Fallsington area. Moreover, Hassine was the vessel into which three years of legal education had been poured, and so he was entrusted by the family corporation with the management of some of its interests including those in the Fallsington area.
In 1979, Hassine met the appellant and decided to go into business with him. Together they opened a new store in Morrisville, Bucks County, called Greg's Quality Meat Market, which was financed by the Hassine family, overseen by Victor Hassine, and operated by the appellant. For various reasons, the business did not prosper, and soon the appellant
[ 332 Pa. Super. Page 612]
began selling marijuana and methamphetamine out of the store to supplement the store's income. The appellant and several employees of the store engaged in the selling. Hassine also began to advise the appellant how to squeeze more profit out of the drug sales.
In early June of 1980, Skip Kellet purchased some methamphetamine from the appellant for one hundred and fifty ($150.00) dollars. Upon bringing the drugs back to his apartment, Kellet discovered the drugs were of an inferior quality and he became enraged. In order to gain revenge on the appellant, he called appellant and told him the drugs were good and he wanted more. The appellant came to Kellet's apartment (where coincidentally appellant had lived for several years prior to Kellet's tenancy) and encountered the enraged Kellet brandishing a cudgel. Kellet threatened the appellant with the club; took the drugs, which appellant had brought with him, and all of appellant's money (either sixty-four ($64) or one hundred and four ($104) dollars); and threw him out of the apartment.
A few days later, a meeting was held at the meat market. Present were the appellant, Hassine, various employees of the meat market, and one William Eric Decker, an itinerant drug fiend and convicted felon, who had been doing labor work for Hassine. Hassine told Decker, in the appellant's presence, that he wanted Skip Kellet killed, or "wasted." Hassine also said that if Kellet's wife, Lois, was there, she "was to go also, because any witnesses had to go." Appellant added that Kellet could be killed at Penn Manor Lakes because he always went fishing there. Appellant also asked one of the employees, Billy Hayes, who lived next door to Kellet, if he could shoot Kellet from Hayes' bedroom window with Hayes' father's gun. Hassine then asked everyone to attempt to procure a gun. The appellant went out and made a phone call, ostensibly to attempt to find a gun, but the party he tried to reach was "sleeping."
Thereafter, Decker accompanied the appellant to the home of one David Evans, a friend of the appellant. Their purpose in going there was to look for a gun. However,
[ 332 Pa. Super. Page 613]
Evans' gun, a hunting rifle, was not suited to their purposes so they did not take it. Decker also accompanied Hassine to the apartment of one Ted Camera, a tenant of a Hassine family apartment in Trenton, to ask for a gun; but again they did not obtain one.
The appellant purchased a .25 caliber automatic handgun from a Tom Easterwood for seventy-five ($75) dollars. Sometime in July, 1980, Hassine gave this weapon to Decker and said, "[h]ere, hit him in the head and leave it there." The gun was test-fired by Hassine and Decker in the back of the market in the presence of appellant and was found to have a defective part.
In late July, 1980, there was a confrontation between Kellet and Hassine in front of one of Hassine's apartments (which was coincidentally across the street from Kellet's apartment). Hassine filed criminal charges of harassment against Kellet. Later a charge of terroristic threats was added when Kellet called the meat market and threatened to burn it down.
On August 1, 1980, Hassine and Decker drove to Edelman's Gun Shop to obtain a part to repair the gun. They did not get the part, but Hassine purchased a box of shells for the gun, for which he signed the register.
Returning from Edelman's, they passed Kellet's apartment, and seeing Kellet, Hassine told Decker to shoot him. Decker demurred because it was daylight, a witness was present and because Hassine was there. Hassine promised Decker that he could have one of Hassine's apartments if he killed Kellet.
On or about August 5, 1980, the appellant and Hassine met with Fred Tuite and Joseph "Critter" Schwab at the appellant's house. Tuite and Schwab were members of the Breed Motorcycle Gang, and Tuite had just been bailed out of jail by Kerry Conklin, a friend of appellant's who frequented the market and also worked as a laborer for Hassine. Tuite had been jailed for offenses relating to the possession of a .357 magnum handgun, which he previously
[ 332 Pa. Super. Page 614]
had attempted to sell to Hassine. Tuite and Schwab were asked by Hassine how much they wanted to kill Kellet. They answered fifteen hundred ($1,500) dollars. The appellant then asked how much to have Kellet beaten up. They answered two hundred and fifty ($250) dollars. At Hassine's direction, appellant left the room and returned with an envelope containing the lesser amount. Tuite and Schwab never did the job.
Thereafter, the appellant told Billy Hayes that Tuite and Schwab were not going to do the job, but rather Eric Decker was designated to kill Kellet. About two and one-half weeks before the shooting, a Paul Koenig, from whom appellant had tried to obtain an unmarked, unregistered handgun, asked appellant if he still needed a gun. Appellant answered "no" that Victor got one. He also said, "We're going to do it Victor's way."
On the evening of August 22, 1980, Kellet and his wife drove to the "Dunkin' Donuts" across the street from appellant's market. Kellet parked the car so that it faced the market. It should be noted that in the period after the drug "rip-off," in addition to the above, there was a continuing pattern of cross-harassment between appellant and Kellet. The appellant saw Kellet, and was worried about his presence. Shortly thereafter, Decker telephoned the market and was told Kellet was there. Decker drove to the market with a friend and after exiting the vehicle, he walked to Kellet's car and sticking his head in the passenger window said, "[a]re you Skipper Kellet?" Kellet answered by exiting his car with a baseball bat in his hand. Decker retreated to his friend's vehicle and then went to the meat market. The appellant unlocked the door and allowed Decker to enter. Decker asked the appellant if Hassine was coming. The appellant said "yes."
Appellant and Decker went to appellant's van which was parked in front of the market and waited for Hassine. Decker said to appellant, "[t]his cat has got to go." Appellant and Decker smoked a marijuana cigarette. Hassine then drove up with his brother, Eli, in a Datsun 280Z.
[ 332 Pa. Super. Page 615]
Decker and the appellant left the van and approached Hassine's car. Decker said, "Tonight's the night -- this cat's got to go. We'll use your gun. I want two hundred and fifty dollars." Hassine said he would come back and pick up Decker.
While Hassine was gone, Decker asked appellant for a shirt to cover his tattoos. Appellant gave him a long-sleeve tan shirt that was in the market. Hassine returned about fifteen minutes later. He and Decker left and drove to the house of Hassine's parents in Trenton. While Decker waited in the car, Hassine went inside and obtained his father's .380 Llama handgun. They drove back to Fallsington and Hassine dropped Decker off. Hassine gave Decker a New York Yankees batting helmet to cover his hair. Decker walked up the street, but got lost despite the directions which Hassine had given him. After about twenty minutes, he found Kellet's apartment. Before going there, he went to the apartments owned by Hassine across the street and sat for a few minutes. He then walked across the street to Kellet's. Actually, Kellet and his wife occupied a second floor apartment, but on this evening they were in the first floor apartment of George Sofield. Decker entered through the kitchen and proceeded into the living room -- the .380 Llama ready to use. There were four people in the living room watching the Friday night fights -- Skip Kellet, Lois Kellet, George Sofield and James Puerale.
As Kellet rose from his chair, Decker fired one shot from the .380 Llama, which struck Kellet in the head, injuring him. Decker turned and fired a shot at Lois Kellet which struck her in the neck and wrist. Decker then shot at Sofield, but missed. Finally, he shot Puerale, an innocent bystander with no connection to the feud between Kellet and appellant. Puerale was killed instantly.
In the interim, Hassine had gone to appellant's house. Appellant and Hassine, and a third person, Michael Thompson, got into Thompson's car. Hassine was carrying a piece of metal pipe approximately twelve inches long. Hassine directed Thompson to drive up and down certain streets
[ 332 Pa. Super. Page 616]
while Hassine whistled out the window. He directed Thompson to stop in the parking lot across from Kellet's apartment. He then directed Thompson to drive to the parking lot of a school behind Kellet's apartment. They then drove to Dunkin' Donuts, where they remained for four or five minutes, until Hassine said, "We've been seen." The men then drove back to Fallsington, and as they were driving along they heard two shots. Hassine stated: "Oh shit, that's my father's gun. I hope that asshole doesn't get caught." The appellant said: "Oh shit, it happened." A few minutes later, Hassine had Thompson stop the car and call, "Eric."
The appellant asserts that the evidence was insufficient because it established that his co-defendant Hassine had a stronger motive for killing Kellet than the appellant. The argument, even if it were grounded in fact, provides no basis for granting relief. A joint trial of co-defendants is not a contest to determine who is more culpable. The Commonwealth's object was to prove both defendants' guilt beyond a reasonable doubt. While each, no doubt, had his own motivation for pursuing this course of misconduct, the Commonwealth's proof demonstrated the meshing and intertwining of the motives, such that the culmination of this cabal could only be viewed as being the result of their joint effort.
The appellant also asserts that the evidence was insufficient to convict him because it only indicated that he wanted Kellet "beaten up." Therefore, appellant could not be guilty of murder on an accomplice or conspiracy theory because he did not agree to the object crime. We find, however, that the appellant's argument is belied by the evidence.
A person is legally accountable for the conduct of another person when he is an accomplice of that person in the commission of the offense. 18 Pa.C.S. § 306(b)(3). An "accomplice" is defined at 18 Pa.C.S. § 306(c), as:
[ 332 Pa. Super. Page 617]
(c) Accomplice defined. -- A person is an accomplice of another person in the ...