*1 Pennsylvania COMMONWEALTH TATE, Appellant. A. Glenn Pennsylvania. Supreme Court March 1979. Submitted 1,May 1979. Decided *2 Jr., Corbett, Defender, John H. Asst. Public for appellant. Colville, Eberhardt, Robert E. Dist. Atty., Robert L. Johns, Charles W. Asst. Dist. Attys., appellee. for EAGEN, J., O’BRIEN, NIX, Before C. ROBERTS, LARSEN, MANDERINO and JJ.
OPINION LARSEN, Justice.
On trial, November following a was jury appellant found of murder of the guilty second mur degree (felony der), robbery and criminal post-verdict After denied, motions were life impris sentenced to onment for the murder conviction. was suspended Sentence on the robbery and convictions. This appeal contentions, follows wherein appellant raises three all *3 of which are without merit.
Appellant’s first contention is that there was insufficient evidence to support his criminal conspiracy conviction. evidence,
To the evaluate we sufficiency must view the evidence in the light most favorable to the winner, Commonwealth as verdict accept as true all the evidence which, and all reasonable upon inferences if be lieved, the jury verdict, could have properly based its and determine whether such and inferences are suffi evidence cient in law to a prove guilt beyond reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the of credibility weight witnesses and the to be accorded the all, evidence produced. The factfinder is free to believe part or none Yost, of the evidence. Commonwealth v. 478 327, Pa. 386 (1978). A.2d 956 standard, Viewed under this the evidence at presented trial established the following evening facts: On the of 13, 1977, February Nixon, Kevin Stanley, Eugene (Bud) and appellant left the home of Nixon’s sister in the located
183 something” “rob agreed three men had to Northside. The the Northside cruising After then the “split proceeds”. and men of the three drove opportunity, finding target and no Du- News in The Avenue Store Duquesne, Pennsylvania. target as a Stanley suggested by quesne, Pennsylvania, and Stanley rob store. agreed and the threesome took a gun in the car while Nixon parked waited the store. the and headed toward glove compartment from his was closed. On Nixon the Avenue News Store found victim, car, Richard way back to the Nixon accosted Calkusic, to rob him. in an behind the store and decided alley by shot killed Nixon. struggled The victim and was and car, happened Nixon to the what had explained returned threesome drove back Northside. proving, by has the Commonwealth burden evidence, of shared direct or circumstantial the existence intent, for, a is an agree the essence of Wil ment to act.1 Commonwealth v. commit unlawful son, 235, 238, 719, (1972). 296 A.2d Pa. “[W]hile shown, more than must be mere association ‘[a] relation, showing be may inferentially by established conduct, and the overt acts parties, or circumstances of held part uniformly on the have been coconspirators in fact competent corrupt that a confederation has prove Roux, been formed . . . .' "Commonwealth a reasonable The evidence established *4 criminal accomplish objective, doubt that to a agreement an 903(a) provides: 1. 18 Pa.C.S.A. § (a) conspiracy person guilty of with Definition of is —A person persons the of another a if with intent or to commit crime promoting facilitating commission he: or its they (1) persons agrees person or one or such or that with other engage crime constitutes such more of them will in conduct which crime; attempt or or an or to commit solicitation such (2) persons planning agrees person in the to aid such other or attempt to or solicitation or of such crime or of commission commit such crime. namely, commit a had been reached the robbery, by car, Appellant’s presence threesome. in the his agreement to rob something, agreement his the and his split proceeds continued association with and Nixon Stanley throughout the incident up to and the ride back to the North- including side was sufficient evidence the verdict that justify jury’s appellant was a in the to commit a partner conspiracy robbery.2 second contention that there was
Appellant’s is insufficient evidence to his murder and rob support felony bery convictions. These convictions were based upon appel lant’s criminal as a responsibility, conspiracy, member of the for acts done in furtherance of the conspiracy. Appellant argues exist, the the assuming conspir did acy terminated when co-conspirator Nixon found that closed, and, therefore, Avenue News Store was the subse quent criminal and (murder victim) acts were robbery “independent, random” impulsive, acts contention conspiracy. This is without merit. 903(g)(1)
Section of the Pennsylvania Crimes Code pro- vides: is a
Conspiracy continuing course of conduct which termi- nates when the crime or crimes which object are its are committed or the agreement be committed is they by abandoned the defendant by those with whom he conspired. object of the aforementioned was to
commit a robbery. When Nixon
the target
shifted
for
accomplishing that objective from the Avenue News Store
victim,
the essence of the conspiracy
agreement
—the
to commit a robbery
unaffected. Nixon’s rob-
—remained
Additionally, appellant argues
2.
that the evidence was insufficient on
grounds
testimony
that much of the evidence was based on the
co-conspirator
(Kevin Stanley)
testifying pursuant
a
who was
to a
plea bargain.
argument
merit;
This
is without
the issue is one of
See,
credibility
jury.
Coades,
for the
Commonwealth v.
Appellant’s contention is that the trial court prejudicial committed error defense counsel’s by overruling objections to testimony given by princi the Commonwealth’s witness, pal Kevin that uses Stanley, alleging “dope.” reference, unsolicited, which was occurred during
direct examination in the following manner:
BY THE COMMONWEALTH: Q there agreement Was to that effect? Was there an
agreement between the three of you split proceeds?
A See, Yes. I don’t dope. Right. use Q All right.
A do, But Bud and Tate and what to do— they’re going
MR. LALAMA: Objection.
THE COURT: Overruled. Go ahead. A that, What they going to do with they was—
was their business. I don’t know what were they going to do with their money.
Immediately preceding this the trial issued colloquy, judge the following instructions in to an ob- cautionary response jection to a similar “dope”: reference to with,
We’re not concerned jury, any members of the other plan problems or only with the matter here but under inquiry; namely, alleged murder this indi- vidual, and the other violations of which reference—or which reference has already been made. problems. with any dope buying
We’re not concerned Go ahead. *6 “the not introduce prosecution may
We recognize criminal conduct as substan- [appellant’s] prior evidence of Common- charge.” tive evidence of his of the guilt present 373, Allen, 177, 181, A.2d wealth v. 448 Pa. Williams, However, in Commonwealth as this Court stated (1977): improper view that all have never ascribed to the [W]e necessarily require references to criminal activities prior remedy. the award of a new trial as the effective only situations have there are Our decisions indicated reference resulting improper where the taint from re- act, without may expunged an unrelated criminal be fair an otherwise remedy aborting sort extreme trial. unsolicit- single from this resulting
We find that taint any caution- ed was so attenuated that the “dope” reference to which the statement were suffi- ary preceded instructions cient to effect which this statement expunge any prejudicial jury. have on the collective mind of the may had of sentence affirmed. Judgments ROBERTS, J., concurs in the result. J.,
MANDERINO, a dissenting opinion. filed MANDERINO, Justice, dissenting. out, the conspir-
I dissent. the majority opinion points As in involved was to not the victim acy something” “rob —but agreed case. The also shows that testimony this ended to rob the Avenue News Store. only agree did not Appellant when Nixon found the store closed. murder was Nixon. The any perpetrated by further acts indeed, “indepen- as was dent, is insufficient random.” The evidence impulsive, support the verdict.