Commonwealth v. Owens

• Decision Date: 20 April 1972
• Citation: 447 Pa. 294,289 A.2d 721
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gerald OWENS, Appellant.
• Court: Pennsylvania Supreme Court

289 A.2d 721

447 Pa. 294

COMMONWEALTH of Pennsylvania, Appellee, v. Gerald OWENS, Appellant.

Supreme Court of Pennsylvania.

April 20, 1972.

Edward J. Zetusky, Jr., Chester, for appellant.

Stephen J. McEwen, Jr., Dist. Atty., Vram Nedurian, Jr., Ralph B D'Iorio, O. Warren Higgins, Asst. Dist. Attys., Media for appellee.

Before JONES, EAGEN, O'BRIEN, ROBERTS and BARBIERI, JJ.

OPINION

EAGEN Justice.

Gerald Owens was convicted by a jury in Delaware County of murder in the second degree and conspiracy to commit murder. Following the denial of post trial motions in arrest of the judgments or for a new trial, prison sentences were imposed on both convictions, the sentences to run concurrently. An appeal from the judgment of sentence imposed on the murder conviction was timely filed in this Court. An appeal from the sentence imposed on the conspiracy conviction filed in the Superior Court was subsequently certified here. The appeals were then consolidated for argument.

Two assignments of error are properly raised by these appeals and require discussion, ^[1] namely, was the trial evidence sufficient to warrant the conviction of second degree murder and, was Owens denied due process of law because of ineffective trial counsel. We shall discuss each in turn.

It is fundamental that in evaluating the sufficiency of the evidence to support a criminal conviction the evidence must be read in a light most favorable to the Commonwealth, and the Commonwealth is entitled to the benefit of all inferences reasonably arising therefrom. Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971). So read, the trial record supports the following facts.

Owens and three other men, Thomas McKnight, Joseph McKnight and Kenneth McIntyre, at the instance of Owens agreed to entice John G. Gentry to a wooded area in Concord Township, and there to beat him up for having physically abused Owens' sister. As Gentry approached the agreed upon location, one of the four jumped him from behind and a struggle ensued; when Gentry tried to flee from the scene the conspirators followed in pursuit and, after catching up with Gentry, McIntyre first hit him with his fists and Owens then handed McIntyre the barrel of a rifle and told him to 'finish' Gentry off so he could not inform the police. McIntyre then hit Gentry several times on the head with the rifle barrel and, after the victim law prostrate on the ground, Owens and his companions fled the scene. Gentry was subsequently found dead where the assault occurred. The cause of death was determined to be due to complications from injury to the head and skull caused by multiple blows with a blunt instrument.

That the evidence was ample to convict Owens of murder in the second degree is beyond question. The fact that Owens did not personally inflict the fatal blows does not, under the circumstances, exculpate him from guilt. Cf. Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926); Commonwealth v. Murrano, 276 Pa. 239, 120 A. 106 (1923); and, Weston v. Commonwealth, 111 Pa. 251, 2 A. 191 (1886). Nor does the fact that the assailants initially intended to only beat Gentry up reduce the crime to something less than murder. Cf. Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (1950); Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394 (1950); and, Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946).

The claim that Owens suffered from ineffective trial counsel arises from the following facts.

Immediately after his arrest, Owens' family retained Richard C. Tinucci, Esq., to defend him. When the case was called for trial on March 24, 1969, Owens expressed to the trial judge dissatisfaction with his counsel because the latter had talked about pleading guilty to the charges. After some discussion of this problem, Owens told the court he wanted the trial to proceed and was willing to have Mr. Tinucci act as his counsel. The jury was then selected and sworn and the taking of testimony commenced. After the luncheon recess on March 25th, Owens again informed the court he was dissatisfied with his counsel because he repeated the suggestion of pleading guilty and requested that Mr. Tinucci be removed from the case and new counsel be appointed. The request was denied.

Later in the afternoon of the same day, Owens again informed the court that he did not want Mr. Tinucci as his counsel and at a conference which...