Com. v. Holmes

CourtUnited States State Supreme Court of Pennsylvania
Citation393 A.2d 397,482 Pa. 97
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Kevin HOLMES, Appellant (two cases).
Decision Date05 October 1978

Page 397

393 A.2d 397
482 Pa. 97
COMMONWEALTH of Pennsylvania, Appellee,
Kevin HOLMES, Appellant (two cases).
Supreme Court of Pennsylvania.
Argued Jan. 19, 1978.
Decided Oct. 5, 1978.

Page 399

[482 Pa. 101] Stanley Bashman, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Glen S. Gitomer, Philadelphia, for appellee.



EAGEN, Chief Justice.

Kevin Holmes was convicted in a nonjury trial in Philadelphia of murder of the third degree, aggravated assault, robbery, and conspiracy. Post-verdict motions were denied and concurrent judgments of sentence of not less than two nor more than ten years imprisonment on each indictment were imposed. These appeals followed. 1

Appellant challenges the sufficiency of the evidence to sustain the convictions.

"The test of sufficiency of the evidence is whether, accepting as true all the evidence and reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted."

Commonwealth v. Hamm, 474 Pa. 487, 494, 378 A.2d 1219, 1222 (1977). Further, we must consider the evidence in the [482 Pa. 102] light most favorable to the Commonwealth. Commonwealth v. Hamm, supra; Commonwealth v. Bryant, 461 Pa. 309, 336 A.2d 300 (1975). So viewed, the trial record discloses the following:

James Holmes, brother of appellant, and Bernard Petty entered the front door of the Hunt Room Bar at 18th and South Streets in Philadelphia on October 25, 1975, shortly after 11:30 p. m. The two proceeded to a washroom in the rear of the bar where they remained for a few minutes. When the two came out of the washroom, they proceeded toward the front of the bar. As James Holmes passed a patron, Jessie Wallace, he pointed a gun at Wallace's head and said: "This is a stickup." James Holmes then seized Wallace. When several female patrons began to scream, Petty ran toward the front door. James Holmes began to pull Wallace toward the front door. He then fired a shot at Petty and turned toward Wallace, who was falling to the floor, and fired a shot at him. The first shot struck Petty; the second struck Holmes' hand and then Wallace. Both Petty and James Holmes then fled the bar.

The evidence linking appellant to the above events consisted of a statement made by him to a police officer and recorded in the handwriting of the police officer. This statement, when completed, was signed by appellant and was later introduced into evidence at trial. This statement was both exculpatory and inculpatory. But in determining the sufficiency of the evidence, we must, as previously mentioned, view the evidence in the light most favorable to the Commonwealth, Commonwealth v. Hamm, supra, and, as applied to this statement, this means we must accept only those portions which inculpate appellant and treat those portions which exculpate him as disbelieved because the factfinder could believe all, part, or none of the statement. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1977). So viewed, Holmes' statement detailed the following:

Prior to the robbery, appellant was riding in a car along with Petty, James Holmes, and Rob, 2 who was the driver, [482 Pa. 103] when "Jimmy talks about stickin-up, robbery, and he says Kevin you go'ne in with me. And I says no I ain't go'ne in nowhere, take me home . . . . Petty (then) say, I'll go

Page 400

with you." Appellant knew his brother had a gun. When the car arrived at a restaurant on West Oak Lane, James Holmes and Petty left the car and entered the restaurant to "make some money." They returned to the car without doing so because the restaurant was too crowded. The four then proceeded to a friend's residence to borrow money, but the friend was not home. They then proceeded "around the corner to where the (two) bars" were located. James Holmes entered one of the bars by himself "to see if (he could) get some money . . . ." He came back out and Petty then entered with him. They remained in the bar for five minutes and then returned to the car. Either Petty or James Holmes then remarked: "We gonna take this other bar across the street." They entered that bar and the attempted robbery and shooting, previously related, took place.

When Petty and James Holmes returned to the car, James Holmes told appellant to "break the car light," but he refused. Rob then told appellant to "break" the car lights and he did so. The four then proceeded to 18th and Montgomery where James Holmes got out of the car. The remaining three went to a hospital where Petty and appellant entered. Rob departed in the car. Later, appellant was informed by someone at the hospital that Petty was dead.

Appellant also said in the statement that James Holmes' only explanation for shooting Petty was: "That m______ f______ coward, I might of shot him." When asked, "Why did you go along," appellant said in the statement ". . . one reason was I was scared of Jimmy, and the other reason was if we got some money I was gonna get some and if he got the money he was gonna get a coat for us."

Appellant does not dispute the sufficiency of the evidence to establish that James Holmes and Bernard Petty entered the bar at 18th and South Streets at 11:45 p. m. on October 25, 1975, with the intent to commit a robbery and [482 Pa. 104] that, during the robbery, James Holmes shot Jessie Wallace and fatally shot Bernard Petty. Rather, appellant contends the evidence is insufficient to establish that he was an accomplice of and co-conspirator with James Holmes, the grounds upon which his criminal liability is based. We cannot agree.

18 Pa.C.S.A. § 306(c) (1973) provides:

"A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(ii) aids or agrees or attempts to aid such other person in planning or committing it."

Instantly, the factfinder could have found beyond a reasonable doubt that appellant had the intent of promoting or facilitating the commission of the robbery, and could also have found beyond a reasonable doubt that he aided or agreed or attempted to aid James Holmes in committing the robbery. These findings were warranted by the following undisputed facts: Appellant knew that James Holmes had a gun and intended to commit a robbery; appellant remained in the car with his brother while various locations were examined as potential targets of the robbery; appellant expected to and would have shared in the proceeds of the robbery; appellant remained in the car while James Holmes and Petty entered the Hunt Room Bar; and, appellant broke the car lights to aid in effecting an escape. Hence, the Commonwealth's evidence was sufficient to establish appellant was an accomplice.

Furthermore, 18 Pa.C.S.A. § 903(a) (1973) provides:

"A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

[482 Pa. 105] (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime."

Page 401

In establishing a conspiracy, direct proof of an explicit or formal agreement is not required. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867, 870 (1976). Moreover,

"while more than mere association must be shown, '(a) conspiracy may be inferentially established by showing 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. Roux, supra at 488, 350 A.2d at 870, quoting from Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958). We are convinced the evidence which established appellant was an accomplice also provides a basis from which the finder of fact could have concluded beyond a reasonable doubt that he was a co-conspirator. See Commonwealth v. Roux, supra; Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).

Appellant argues his trial counsel was ineffective for failing to preserve the following issues in regard to the admissibility of his statement for review on appeal: 3 1) whether the statement was the product of an illegal arrest; 4 and, 2) whether the statement was the product of unnecessary delay between arrest and arraignment. 5

"In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

[482 Pa. 106] '(C)ounsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had Some reasonable basis designed to effectuate his client's interests.'

The initial factor which must be considered in applying this reasonable basis standard is whether the claim which . . . counsel is charged with not pursuing had some reasonable basis. In (Washington) we noted that 'a finding of ineffectiveness could never be...

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