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filed: May 3, 1985.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, at No. 1722, 1723, 1724, 1726 October Term, 1980. No 00206 Philadelphia 1983. Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, at No. 1727, 1728, 1729, and 1731 October Term, 1980. No. 00492 Philadelphia 1983


Daniel H. Green, Philadelphia, for appellant (at 206).

Leonard Zack, Philadelphia, for appellant (at 492).

Sandra Adler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Del Sole, Montemuro and Hoffman, JJ.

Author: Montemuro

[ 343 Pa. Super. Page 156]

This is a consolidated appeal from the judgments of sentence. The appellants, David and Samuel Maldonado, are brothers.

Appellants were tried before the Honorable Charles L. Durham of the Court of Common Pleas of Philadelphia sitting without a jury.

Each appellant was found guilty of second degree murder,*fn1 criminal conspiracy,*fn2 robbery,*fn3 and possession of instrument of crime.*fn4

Following the denial of post-trial motions, each appellant received the same sentence, namely, life imprisonment for second degree murder and a concurrent sentence of five to ten (5-10) years for criminal conspiracy.*fn5

Both appellants say that the trial court erred (a) in refusing a request for a view of the crime area, and (b) in refusing to order a mistrial when it was clear that the prosecution had violated the court's order of sequestration of witnesses. We are convinced from our own independent review of the entire record of each appellant, including the

[ 343 Pa. Super. Page 157]

    briefs of counsel, that these claims are completely without merit. The trial judge had adequately addressed these issues and properly dismissed them.

Appellant, David Maldonado, also argues in this appeal that Section 3701, Subsection (a)(2) of the Pennsylvania Crimes Code should be struck down as unconstitutional because of vagueness. However, since this claim of error was never raised in appellant David Maldonado's post-verdict motions, it is waived and will not be considered. Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 240-41 (1983). Commonwealth v. Gravely, 486 Pa. 194, 198-99, 404 A.2d 1296, 1297-98 (1979).

Both appellants, albeit for different reasons, assert that the evidence was insufficient to prove beyond a reasonable doubt that appellant had committed a robbery and a theft; hence, a conviction of second degree murder under the felony-murder rule was improper.*fn6

[ 343 Pa. Super. Page 158]

Appellant David Maldonado also argues that the evidence was insufficient to support a finding of guilty as to the crimes of criminal conspiracy and possession of instrument of crime.

In reviewing a motion in arrest of judgment, whether the finder of fact is a jury or a judge sitting without a jury, "the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove. See, Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65, 93 A.L.R.2d 616 (1959), and Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). Also, in passing upon such a motion, all evidence actually received must be considered, whether the trial rulings therein were right or wrong." Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (emphasis in original); accord; Commonwealth v. Winebrenner, 439 Pa. 73, 77-78, 265 A.2d 108, 111, (1970); Commonwealth v. Parker, 305 Pa. Super. 516, 524, 451 A.2d 767, 770-71 (1982).

"In testing the sufficiency of the Commonwealth's evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient." Commonwealth v. Herman, 271 Pa. Super. 145, 148-49, 412 A.2d 617, 619 (1979).

[ 343 Pa. Super. Page 159]

Considered in the light of the above mentioned standards, tests and principles, the salient facts are as follows:

On August 13, 1980, on a warm summer afternoon, Anthony Gustaitis (Anthony),*fn7 his sister Mari, David Lightey and Patty Garwood went to the Devil's Pool area of Valley Green Park in the City of Philadelphia for a picnic. During the course of the afternoon they met Steven Monahan (the decedent),*fn8 his sister Noreen, Sophia Hartell and her boyfriend, Mark Miller. These two groups of young people, previously unacquainted, socialized for several hours. At approximately 6:00 p.m., the appellants David and Samuel Maldonado, Jesus Lisojo (Jesus), and Elvin Maldonado (Elvin), all young hispanic males,*fn9 arrived on the scene and were invited to join the others. For some hours, until approximately 8:00 p.m., these young people entertained themselves by swimming, drinking beer, smoking "joints" and singing while Mark Miller played the guitar.

At about 8:30 p.m., David Lightey, Noreen, Mari and Patty had left the scene to get more beer and cigarettes. Elvin, apparently in the course of maneuvering over the rocks to get to the swimming hole, sprained his ankle and returned to his car which was parked in the parking lot adjacent to the Canoe House located near the picnic area. He was assisted by Jesus and the appellants, Samuel and David. While at the car, Elvin heard Jesus and the appellants say they were going to take the "white kids' box." Elvin saw that they were each armed with a steak knife which he heard them say they had already stolen from the box. Elvin fell asleep in his car while Jesus and the appellants returned to the picnic area.

Anthony, who had remained at the picnic area with the decedent, Mark Miller and Sophia, testified that suddenly, appellant Samuel Maldonado seized the box containing items ...

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