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COMMONWEALTH PENNSYLVANIA v. ROBERT BRICKER (09/26/88)

filed: September 26, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BRICKER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County Criminal Division at No. 8104233A

COUNSEL

Lawrence J. O'Toole, Jr., North Versailles, for appellant.

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Brosky and Johnson, JJ.

Author: Cirillo

[ 378 Pa. Super. Page 266]

This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Allegheny County. We affirm.

Appellant, Robert Bricker, was arrested and charged with one count of criminal homicide. His case was consolidated for trial with co-defendants Thomas Skelton, James Griffin, Samuel Rende, and James Watson, but was subsequently severed by court order. Following a jury trial, Bricker was adjudged guilty of first-degree murder, and was sentenced

[ 378 Pa. Super. Page 267]

    to life imprisonment. He filed post-verdict motions which were untimely in contravention of Pa.R.Crim.P. 1123(a). Consequently, Bricker's appeal from the judgment of sentence was quashed sua sponte. Bricker filed a petition under the Post Conviction Hearing Act, 42 Pa.C.S. ยง 9541-9551 (Purdon 1982) (amended 1988). The petition was granted and Bricker's appellate rights were reinstated nunc pro tunc. Bricker then filed a new notice of appeal.

In a 1987 memorandum, a panel of this court affirmed the 1986 trial court judgment of sentence. The Pennsylvania Supreme Court subsequently granted allocatur, vacated this court's affirmance of the judgment of sentence, and remanded the case to this court for further proceedings. 518 Pa. 68, 540 A.2d 932. Pursuant to our supreme court's order, we now consider on remand the issue of whether the trial court erred in admitting the testimony of Commonwealth witness Charles Rossi in light of Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985).

Bricker was charged for his complicity in the December 14, 1978 killing of Norman McGregor. The events leading to McGregor's murder began in March of 1978. At that time, as a result of growing animosity between Thomas Skelton and McGregor, Skelton decided to have McGregor killed. Skelton made his plans known to Samuel Rende who, on Skelton's behalf, told Charles Kellington of the scheme. Kellington, in turn, discussed the killing with James Griffin and Gerald Walls. These men offered Bricker's name for the job. Griffin quoted Kellington a price of $10,000.

Skelton agreed to pay that amount, and gave Kellington an initial payment of $2,500. Skelton also supplied Kellington with McGregor's physical description, residence and job locations, and personal "hang-outs." Kellington subsequently gave Griffin the $2,500. In addition, he related the information regarding McGregor to Griffin and Walls. Walls, in turn, supplied Bricker with that information.

In July of 1978, Charles Rossi agreed to assist in the killing at Bricker's request. Bricker gave Rossi the information

[ 378 Pa. Super. Page 268]

    on McGregor, and told him that they would split the money he was to be paid for the job.

Approximately one week later, Bricker brought in James Watson to assist with the killing. At that time, he instructed Watson and Rossi to find and kill McGregor.

Bricker, Watson, and Rossi alternated in stakeouts for several weeks, waiting for an opportunity to kill McGregor. This included an incident where Watson shot James "Smitty" Smith, whom Watson mistakenly believed to be McGregor. The shooting prompted Bricker, who had not had any contact with Kellington to this point, to agree to deal directly with him on the condition that he, Bricker, receive an additional $2,500 up front. Through Kellington, Skelton paid Bricker that $2,500, and then paid the final $2,500 payment due on the contract. Kellington then personally guided Bricker on a tour of McGregor's "hang-outs."

For several more weeks, Bricker, Watson, and Rossi attempted, unsuccessfully, to kill McGregor. Finally, on December 14, 1978, Bricker told Rossi that Watson had killed McGregor. Rossi was paid $800, and later received an additional $1,000 from Bricker.

At trial, direct examination of the Commonwealth's witness, Charles Rossi, revealed Rossi's long history of incarceration. It was then disclosed that Rossi had been acquainted with Bricker for nineteen years. The relevant testimony is as follows:

A. . . . I served 11 months for larceny of a car in Whitehill, Pennsylvania when I was about 21 1/2 years old. And in 1943 I received 70 years, some of them concurrent. Some sentences were concurrent and some were consecutive 10 year sentences, and they accumulated to be 30 years in the West Virginia Penitentiary for sticking up a gambling establishment in Wheeling, West Virginia. And I served about 15 years there.

Q. Of that sentence you served 15 years?

A. About 15 years, that's correct.

[ 378 Pa. Super. Page 269]

Q. Okay.

A. And then a couple of years after that I got found guilty of First Degree Murder of a bookie. I received life there.

Q. And were you the individual that had actually engaged in the killing of that bookie?

A. No, I was not.

Q. And you were convicted as an accomplice?

A. As an accomplice under the Felony Statute.

Q. And so that you were, as an accomplice, found guilty of ...


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