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COMMONWEALTH PENNSYLVANIA v. ERNEST POTTS (05/25/89)

submitted: May 25, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ERNEST POTTS, APPELLANT



Appeal from the judgment of sentence October 19, 1983 in the Court of Common Pleas of Philadelphia County, Criminal, No. 81-02-2251.

COUNSEL

Irene H. Cotton, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Beck, Johnson and Hoffman, JJ. Johnson, J., concurs in the result.

Author: Beck

[ 388 Pa. Super. Page 596]

On appeal appellant first questions whether his conviction for murder of the first degree based upon an accomplice liability theory was proper when it was based upon wholly circumstantial evidence. The second, third, and fourth assignments of error charge that trial counsel was ineffective for failing to object to the Commonwealth's proceeding on an accomplice liability theory, for failing to preserve the objection that evidence of defendant's prior bad acts should not have been admitted into evidence, and for failing to impeach a Commonwealth witness.

This is a direct appeal by Ernest Potts from a judgment of sentence of life imprisonment for the offense of murder of the first degree. On March 17, 1980, at about 7:00 p.m.,

[ 388 Pa. Super. Page 597]

Ernest Potts and David Owens met and drove in a car together to the residence of Michael Cunerd as designated by Owens. This trip was being made to inquire into an alleged burglary of Potts' apartment during which two pounds of marijuana, various articles of jewelry, and $400.00 in cash had been stolen. Potts testified at trial that subsequent to the alleged burglary, Owens told him that Cunerd was the person who had burglarized his apartment. Potts and Owens successfully accosted Cunerd on a street corner near his residence. Potts contends that he then exited from his car and told Cunerd that he wanted to speak with him. At that time Cunerd allegedly excused himself by claiming that he needed to first talk with a neighbor, but that he would return to speak with Potts subsequent to that conversation. Potts and Owens waited for Cunerd's return in Potts' car. When Cunerd returned, Potts asked him to get into his car and Cunerd obliged. Potts contends that at this time, with Potts operating the car, a three-way conversation ensued during which Potts continually asked Cunerd if he had burglarized his apartment. Cunerd denied having committed the burglary, and Owens asserted his belief that Cunerd had committed the alleged burglary. The three eventually reached a deserted area in southeastern Philadelphia known as the "Meadows". Once at the "Meadows", the conversation in the car continued, with Cunerd protesting his innocence and Owens periodically grabbing Cunerd's shoulders from behind and shaking him. Eventually, Potts contends that he ordered Cunerd from the car stating that he and Cunerd "were going to fight." Potts got out from the driver's door and confronted Cunerd outside the passenger door. Ultimately, Potts pushed Cunerd up onto the front hood of the car. At this point, Owens exited the car through the passenger door. Potts testified at trial that at this time, Cunerd jumped off the hood of the car and ran from the car with Owens in pursuit. Owens caught Cunerd within 100 yards of the parked car and began to stab him in the back. When Cunerd had fallen, Owens pinned him with

[ 388 Pa. Super. Page 598]

    his knees and stabbed him many more times. During this time, Potts contends that he watched the stabbing from a distance of approximately 30 feet. After the stabbing, Potts approached Owens and told him to "See if anything is in his pockets." Owens did so, and in a statement given to the police after his eventual arrest, Potts claimed that he may have seen his wedding ring which was allegedly taken during the burglary. Owens also found a small spoon in the deceased's pocket which he placed in the deceased's mouth and thereafter kicked down his throat. Potts claims that at this point, Owens told him "Let's get the hell out of here. The m--- f--- is dead." During the course of this incident, Potts was armed with a pen-gun and Owens with a knife with a seven-inch blade. Potts contends that as he drove Owens back to his home, Owens advised that "If anything ever comes down on this, you don't know anything."

The trial court summarized the subsequent events.

The body was discovered by an employee working in the "Meadows" area in the early morning of March 18, 1980. Following Owens' arrest on January 27, 1981, Potts was thereafter arrested on a warrant on February 5, 1981. Potts' arrest stemmed from Owens' statement to the police and additional information furnished by William Dales, a friend of both defendants. At trial, Dales testified that he had had a telephone conversation with Potts about two days before the killing. In that telephone conversation, Potts told Dales that his house got "robbed" that he knew Mikey Cunerd (deceased) did it, that marihuana [sic], speed pills and jewelry were stolen, and that he was going to kill the deceased.

Trial Court Op. at 8.

Appellant first contends that since his stated intention was to beat up the deceased, rather than to kill him, there was insufficient evidence to establish his intention to kill Cunerd, as required for conviction of murder of the first

[ 388 Pa. Super. Page 599]

    degree.*fn1

As we stated in Commonwealth v. Taylor:

324 Pa. Super. 420, 422, 471 A.2d 1228, 1229 (1984) (citations omitted); See also Commonwealth v. Hughes, 521 Pa. 423, 434, 555 A.2d 1264 (1989). With this ...


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