Com. v. Dussinger
Decision Date | 02 June 1978 |
Citation | 478 Pa. 182,386 A.2d 500 |
Parties | COMMONWEALTH of Pennsylvania v. Constance DUSSINGER, Appellant (two cases). |
Court | Pennsylvania Supreme Court |
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.
Appellant, Constance Dussinger, also known as Constance Kelley, was tried by a judge and jury and was convicted of two counts of murder of the second degree, robbery, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to two concurrent terms of life imprisonment. Sentence was suspended on the robbery and conspiracy convictions. The homicide convictions were appealed directly to this court, while the non-homicide convictions were appealed to Superior Court, which certified those appeals to this court.
The facts are as follows. On July 3, 1974, the partially decomposed bodies of Willie Billingsley and Ernest Barnes were discovered in Billingsley's Philadelphia residence. Both victims died of gunshot wounds to the head. The medical examiner found it impossible to accurately determine the times of death, but he estimated that both deaths occurred between 6:00 a. m. on Monday, July 1, 1974 and 6:00 p. m. on Tuesday, July 2, 1974.
During their investigation, police discovered that Billingsley held at his residence Monday-night poker games involving large sums of money. Police discovered that a game was held on July 1, 1974, two days before the bodies were discovered. Investigation further revealed that Billingsley, during the week prior to his death, had "hit a number" for well over one thousand dollars. Despite the foregoing facts, no money was found on either of the victims or in the house. Further, when Billingsley's body was discovered, the pockets of his trousers were pulled out and a large glass bank was broken into two pieces.
During their investigation, the police found that appellant had been employed by Billingsley to serve food and drinks at his weekly poker games. She was originally questioned concerning Billingsley's background; however, she subsequently gave police an inculpatory statement. According to appellant, in late June of 1974, a co-defendant, Ervin Warren, had stolen approximately $1,500 worth of payroll checks. Warren gave the checks to appellant, who gave them to Billingsley. Warren later decided to cash the checks himself and told appellant to get the checks back. When appellant forgot to get the checks, Warren, appellant and co-defendant Charles Jackson went to Billingsley's home to recover the checks. Appellant knew both the purpose of the trip and that both of her companions had guns.
Once inside the Billingsley residence, Jackson handed appellant a gun and instructed her to keep it pointed at Barnes, who was sleeping on a couch. Warren and Jackson then accompanied Billingsley to the upper floor of the house. Appellant stated that five minutes later she heard two or three shots from upstairs, which startled her, causing the gun she was holding to accidentally discharge, killing Barnes. Appellant stated that she then fled the premises and returned home.
Appellant first argues that the trial court erred in refusing her demurrer to the conspiracy and robbery indictments. She argues that since she neither took anything nor intended to participate in a robbery, the charges of conspiracy and robbery should not have been submitted to the jury.
The issue as presented to this Court is not properly preserved for appellate review.
In Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976), stated:
The appellant in the instant case, presented a defense. Therefore as in Ilgenfritz, supra we will treat her challenge as one to the sufficiency of the evidence rather than one challenging the correctness of the trial court's rulings on the demurrers.
In Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975), we stated
A review of the evidence in light of this standard makes clear that sufficient evidence is in record to sustain appellant's convictions for conspiracy and robbery.
In Commonwealth v. Mobley, 467 Pa. 460, 463, 359 A.2d 367, 368 (1976), we stated:
" . . . It is well-established that a conspiracy may be proved by circumstantial evidence as well as by direct evidence. Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973); Commonwealth v. Batley, 436 Pa. 377, 392, 260 A.2d 793, 801 (1970); Commonwealth v. Yobbagy, 410 Pa. 172, 177, 188 A.2d 750, 752 (1963). 'Although more than a mere association must be shown, " '(a) conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: . . . ' " ' Commonwealth v. Eiland, supra; Commonwealth v. Neff, 407 Pa. 1, 6, 179 A.2d 630, 632 (1962); Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958)."
In the instant case, appellant knew that her co-defendants intended to recover the stolen checks, even if the use of the handguns was necessary. Despite this, appellant went along with the pair and helped them gain entrance into the victim's home. From this evidence, it is reasonable to infer that appellant agreed with her co-defendants to rob the victim.
The same holds true for the charge of robbery. The Crimes Code provides:
Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 306.
The evidence in the instant case was clearly sufficient to uphold a finding that appellant was an accomplice and thus accountable for the actions of her co-defendants. Since we have already found sufficient evidence to prove a conspiracy, it follows that it has also been shown that appellant has "agreed to aid" in the planning or commission of a robbery. Appellant is thus an accomplice, making her accountable for the actions of her co-defendants under § 306 of the Crimes Code. The evidence is also sufficient to show that the co-defendants were guilty of robbery, as a reasonable inference may be drawn that the co-defendants used force to take, or in an attempt to take, the victims' money. This is shown by the evidence that the pockets of one of the victims were outturned, and the evidence that a glass bank in Billingsley's home was broken with no money left. 1 The evidence was sufficient to sustain appellant's convictions of robbery and...
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