Appeal from the Judgment of Sentence September 26, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 8309-0639, 640, 641, 643-3/3.
Arthur H. James, Philadelphia, for appellant.
Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Olszewski and Beck, JJ.
[ 355 Pa. Super. Page 373]
This appeal, the last of the trilogy, comes to us from the judgment of sentence after a verdict of guilty, returned by a jury against appellant on charges of murder in the third degree, robbery and conspiracy. On appeal, appellant alleges: first, that there was insufficient evidence to support a conviction for conspiracy to commit murder and/or robbery; second, that the trial court erred in refusing to grant counsel's requested points of charge; and third, that the prosecutor's closing argument was so inflammatory that appellant was denied a fair and impartial trial. After a careful review of case law and facts, we reverse the judgment of sentence on the grounds of insufficient evidence.
The facts, as taken from the trial court, reveal the following. On Saturday, July 9, 1983, at approximately 2:00 a.m., seventeen-year-old Thomas Murphy was shot while riding his ten-speed bicycle in the 7200 block of Woodland Avenue in West Philadelphia. In an effort to avoid his attackers, Murphy continued to pedal his bike crossing the city line into Darby, Delaware County. At a distance of approximately 900 feet from the point of attack, Murphy crashed into a parked car and collapsed to the ground. Cynthia Leonard observed the victim as he rode past her apartment building on Main Street in Darby. Leonard ran over to Murphy when he crashed into the car and observed two bullet holes in his body. Leonard also heard Murphy state, "A Nigger shot me." (N.T. 306, 1-10-84).
Murphy was rushed to Fitzgerald Mercy Hospital where he was pronounced dead approximately three hours after the attack. An autopsy performed by the Delaware County Medical Examiner, Dr. Dimitri Contostavlos, on July 9, 1983, revealed the cause of death to be loss of blood due to
[ 355 Pa. Super. Page 374]
two gunshot wounds to the trunk. The manner of death was ruled a homicide.
At trial, the Commonwealth's evidence established that at approximately 2:00 a.m. on July 9, 1983, Thomas Murphy left the house of his girlfriend, Colleen Doogan, located in the 6100 block of Wheeler Street, and began to pedal home on his bicycle. (N.T. 302-303, 1-10-84). At approximately the same time, the defendants Joseph Council, Michael Upchurch and Michael Johnson, along with one Mary Alice Smith, were exiting the Birthday Bar located at 7250 Woodland Avenue. (N.T. 231-233, 1-10-84). Upon observing Murphy on the bicycle, defendant Council stated, "Here comes a white boy. Let's get him." (N.T. 205, 337, 1-10-84). Shortly after these words were uttered, defendant Upchurch pulled out a revolver and fired two shots at Murphy, striking him in the chest and in the back. (N.T. 425, 1-11-84). As the victim continued to ride away, all three defendants, as well as Mary Alice Smith, fled the scene.
Acting on information supplied by Smith, the police obtained arrest warrants for the defendants. Michael Johnson and Joseph Council were arrested on July 22, 1983. Michael Upchurch was apprehended on the following day, July 23, 1983.
Defendant Johnson was charged under September Term, 1983: no. 639 criminal conspiracy; no. 640 possession of an instrument of crime, generally; no. 641 robbery; no. 642 involuntary ...