COMMONWEALTH OF COURT OF COMMON PLEAS

SEPTEMBER TERM, I978
EDWARD GOODMAN NOS. IOI -l28
CHARLES SIMS NOS. 129-156
DELBERT ORR NOS. l57-l84
WILLIAM PHILLIPS NOS. I85-212
JEANENE PHILLIPS NOS. I473-I492
MICHAEL DAVIS NOS. l513-l532
DEBBIE SIMS N05. 1533-! 552
MERLE AUSTIN NOS. 1553-1572
JANET HOLLOWAY NOS. 153-1592

OPINION SUR DENIAL OF POST TRIAL MOTIONS

Inexorobly, as in a Greek tragedy, the monumental contempt and
de?ance of these nine members of the Move group for law and the entire Philadelphia
community reached a crescendo on August 8, I978, with the senseless murder of
police of?cer James Ramp and the severe wounding of seven other policemen and
?remen.

All defendants were convicted, in a bench trial, of murder in the
third degree, criminal conspiracy, attempted murder and aggravated assault and
battery . Post trial motions have been argued and denied and the defendants have
been sentenced.

Pre-trial suppression motions challenging the validity of the defendants'
arrests, their identification and of the plain-view observations of police of?cers
were denied separately by the Honorable George Ivins and the Honorable Charles P.
Mirarchi, Jr., in opinions containing discussions of the law and ?ndings of fact.

We have carefully reviewed these matters and concur with the conclusions set forth.
An additional motion, heard by the late Honorable Memo Marshall, dealing with the

destruction of the Move house and a tree fronting it, was ruled adversely to defendants

and will be discussed infra.

 


- EXHIBIT 

 

 

 

.. 

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Uniquely, police cameramen and television station WCAU tape recorded
the entire incident from the first appearance of the police equipment on the scene
until the final apprehension of the defendants. This was possibly the first situation
in history where the entire criminal event was captured on film, together with
accompanying sound. The trier of fact was thus not relegated to farming conclusions
from the descriptions of witnesses, but was aided in arriving at a verdict from the
reenactment of the actual episode.

This opinion shall not attempt any discussion of the purported
beliefs and lifestyles of the Move group, in which these nine defendants have
repeatedly claimed membership and adherence. The reported opinions of the courts
of this Commonwealth are replete with such detail. Suffice it to say that these nine
defendants have proclaimed their allegiance to one John Africa. apparently deemed
by them to be the repository of all knowledge and the supreme arbiter of all laws
relating to human behavior. We have referred to these beliefs in order that the
sloganeering and utterances which disrupted the trial may be better understood.

The nine backup counsel have ingeniously produced a w'elter of assign-
ments of error. Although careful consideration has been given to all assignments,
we disregard as patently meritless all except those treated herein. In our Opinion,
the ignored assignments, individually and in total, did not rise to any imperative
requiring the grant of a new trial and/or an arrest of iudgement.

This opinion will, therefore solely discuss the following:

I. SUFFICIENCY OF THE EVIDENCE
Responding to complaints by neighbors and City officials, inspectors

from the Philadelphia Department of Licenses and Inspections attempted on numerous

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occasions to examine the Move headquarters at 307-309 North 33rd Street, Philadelphia,
to ascertain whether these premises, occupied by multiple residents of the Move group,
met the requirements of the Philadelphia Housing and Fire Codes. It appears that all

attempts by inspectors to examine the premises were effectively blunted by the

 

 

. occupants and eventually the situation resulted in litigation.

E: On January 30, 1976, the Supreme Court of in the case

of City of Philadelphia v. Donald Glassey, Eastern District, Number I22, Miscellaneous

 


3 Docket Number granted a Writ of Supersedeas conditioned upon official

'1 inspectors being permitted to enter the premises to determine the existence and extent

of any violations of the Philadelphia Code. The Court further directed the Honorable

Ii. (3. Fred DiBona of the Philadelphia Court of Common Pleas to hold an evidentiary

.hearing to determine whether the condition upon which the supersedeas was granted

had been observed. On June 2, I976, Judge DiBono filed certain findings of fact and
concluded, i213 9&1, that the premises presented a serious hazard to the health,
safety and welfare of the residents of neighboring properties, and it was further found

that the occupants of the premises had refused to permit official inspection, even by

 

an "inspector of their own choosing." Judge DiBona further stated that blatant

 


IvioIations had appeared and the occupants had "absolutely no regard for the implementa-

Ill tion of any aspects of said codes," and that rats and dogs had free run of the
l: premises.

I Despite the described court orders, the Move Organization successfully

resisted all efforts on the part of the constituted authorities. A stockade or parapet
was erected around the perimeter of the properties, windows were sealed and all

access denied. Bullhorns were procured by the occupants and inflammatory diatribes
in the highest of decibels spewed forth from the parapet accompanied by the wearing of
pseudo military uniforms and the brandishing of weapons, including semi-automatic

firearms.

 

 

 

including five of the defendants,

armed as described above.

On May '20, I977, numerous members of the Move organization,

were thus observed on the stockade, dressed and

Defendant Delbert Orr warned Inspector Fencl at that

time that any attempt to eiect the Move members from the residence or to take them

Threats of a similar nature

into custody would be resisted with arms and explosives.

?were made by various defendants during the ca urse of this particular confrontation.

On June 4, I977, the police again attempted to serve arrest warrants

on five of the defendants who harl appeared during the May 20, I977 incident.

 

I Seven of the present defendants appeared on the platform armed with clubs and

threatened to kill police officers who might attempt to ascend the parapet. In

I hopes of compelling surrender, a police blockade was then thrown about the

property, which again led to the continual voicing of threats and abuse.

Ultimately, the City administration and

Move, represented by Oscar

Gaskins, Esquire,
the settlement agreement,

ninety days and the full terms

the Move members agreed to vacate the premises

attempted to negotiate a settlement of the impasse. As part of

within

of the agreement were set forth in an order dated

 

 

order and remained in the premises.

I May 3, I978, issued by the Honorable G. Fred DiBona, now deceased.

The defendants contemptuously ignored their own agreement and the court

On August 2, l978 (the eXpiration of the

 

ninety-day period) Judge DiBona found these defendants, inter alia, in violation
of the court order, and bench warrants and writs of attachment were issued for these

nine defendants and others. It was the attempt by the police to execute Judge

 

DiBona?s warrants and attachments which precipitated the armed resistance and resulted

in the murder of Officer Ramp and the wounding of the other peace officers.

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-.. - 

.. 

Hun-.n-uu- 



Thus, on August 8, I978, a detachment of Philadelphia Police and Fire-
men arrived at the Move headquarters at approximately 7:00 a.m. Police equipment
leveled the stockade and opened the boarded windows. Police Officer Powell addressed
the occuPants by bullhorn advising them to vacate the premises and assuring them 1
of safe conduct. Monsignor Charles Devlin, a priest designated by Cardinal Krol, made
similar overtures and assurances. Walter Palmer, described as at community activist,
made similar representations and attempted to persuade a peaceful evacuation. These

entreaties were ignored and were met by the customary obscene reioinders for which

 

this group is noted.

i At this point, it was ascertained that all occupants had retreated into the
basement of 309 North 33rd Street, where it was later discovered that a veritable
arsenal of firearms and ammunition had been stored. Attempts were made to dislodge
the occupants by training "deluge" water hoses into the basement windows of premises

309, but again without success. The ?rst sign of violent opposition from the basement

 

then took place, consisting of a fusillade of shots, some of which could be observed
tearing through the streams of water. The barrage was returned by the police, but no
one appeared to have been struck by this exchange. A cease fire was then ordered
by Deputy Police Commissioner Solomon, an order with which police personnel complied.
During this cease fire, the silence was again broken by another outburst of shots from

the entrenched Move group. Single and distinct shots by that defendant holding the

 

Ruger Rifle (Exhibit then wantonly killed Officer Ramp and seriously wounded
Officers Stewart and Hesson, at a time when police were not returning fire. Four
other peace officers were seriously wounded by discharges from basement firearms.

Following these tragic occurrences, the police succeeded in gaining entrance to the

 

 

 

 .. H?e-g?m?ma? ..

.- app?F. 

 

 

compound and apprehending all defendants. On this convincing evidence of a

 

coherent, pre-planned determination to resist arrest, by means of violence and

 

threats of violence, coupled with a display of loaded weapons, and climaxed by a

murderous assault, these defendants were properly convicted of murder in the third

degree\and associated charges.

ll. DESTRUCTION BY THE POLICE OF THE MOVE RESIDENCE AND A TREE
FRONTING THE BASEMENT WINDOWS ON THE 33rd STREET SIDE OF
309 NORTH 33rd STREET

Various motions were filed by defendants praying for relief as a result
of the demolition by the police of the Move premises and the described tree. Ex-
tended hearings took plat-e pretrial before the late Honorable Merna Marshall, who
ruled adversely to the defendants. Unfortunately, J'udge Marshall's findings and
conclusions were not reduced to written form, although there is no question but that
the defendants' motions in these respects were denied. It is incumbent upon us,
therefore, to review that record. We have done so and find ourselves in accord with
her order.

Preliminarily, it appears that the defendants appeared BEE. durihg the
hearings before Judge Marshall on these motions. Possibly as a consequence, the
record before Judge Marshall appears barren of any effective attempt by the defendants
to demonstrate preiudice -- rather, the defendants appeared to rely on the contention
that the destruction of the compound and tree, ipso facto, required dismissal of the
charges against them. The burden of proof in said motions was, of course, imposed
upon the defendants, who utterly failed to establish the necessary preiudice.

Brady v. Maryland, 373 U.S. B3, 87 Sullivan v. Cuyler, 446 U.S. 335 

 

 

 

 

 

ll commnweOlth V. Weathers 485 PG. 28 conceiwbly' we could dismse i

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wt

of defendants' motions on the above ground, but, nevertheless, we shall consider

the issues at length. The arguments hereafter discussed were, in the main, advanced
by those counsel who supplanted the defendants mid-trial and have represented

them at all stages since.
\In order to dispose properly of the defendants' motion to dismiss

based on the destruction, it is necessary to discuss briefly where the residence and
\tree were located. The Move compound was situated on the southeast corner of
33rd and Pearl Streets in Philadelphia. Thirty-third Street bordered the facility

\on the west and Pearl Street on the north. The Move residence actually consisted

\or two houses, 307-309 North 33rd Street, which shared a common party wall:

 

309 North 33rd Street was on the north side of the party wall and 307 North 33rd
Street on the south side of the parry wall. The two connecting houses were each
three stories high and contained a basement with easy access in the basement between
the two houses. On the north wall of the basement of 309, the side facing Pearl
1 Street, were two windows and a fairly large hole for an oil intake pipe which
passed through the basement wall. On the west wall of the basement of 309, the

side facing 33rd Street, there was one window. The tree which was destroyedlstoad

  
  
 
  
 
 
 

on the 33rd Street side of 309 North 33rd Street, approximately four feet in front

of this window.

The decision by City officials to demolish the Move residence was
initially reached in I976 following the Supreme Court Order adapting
Judge G. Fred DiBana's findings that the residence presented a serious health and
safety hazard to the neighborhood residents, and that rats and dogs aboundedfl)
During the period from I976 until the shootout, numerous conferences took
place between City officials and the Move group, together with their counsel.

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'1

l?



 




3 
1

I



 

 

The record demonstrates that all participants understood that the premises would be
demolished at such time as it had been vacated, pursuant to the agreement reached
before Judge DiBona.

On the day of the confrontation, after the defendants had been removed
and apprehended, the police entered the premises and seized in the 309 basement a
large cache of ?rearms, ammunition, and other items. During this time ,the entire
interior of the house was extensively photographed and sketched and all materials
secured were subsequently furnished to defendants and their camsel for inspection and
evaluation. Between the hours of l2:30 p.m. and 4:00 p.m. on August 8, I978,
pursuant to an Order issued by Police Commissioner Joseph O'Neill, the structures
were finally razed, the tree removed and the lot bulldozed to level. The record
before Judge Marshall indicates that, aside from the existence of the health and
safety hazards, the demolition occurred for additional reasons: to prevent its
re-occupation by the mobs congregating around police barriers, including such Move
members or sympathizers as were not present in the house during the confrontation;
(2) to prevent children and trespassers from entering the premises and injuring
themselves, and (3) to prevent the house from becoming a cult symbol. After, the
expenditure of the huge sums of money by the City in connection with the various
Move activities over a number of years, including the date of the confrontation, the
of?cials understandably had no wish to permit the site to re-emerge in the fashion

of the Hydra or the Phoenix.

The above factual recitation appears to demonstrate the good faith of the

demolishing authorities. In our view, however, as will be discussed, the question of

good faith or bad faith is irrelevant.

 

 

 

 

The defendants' first argue that this destruction violated the l4th amendment
due process clause and the 6th Amendment confrontation clause of the United States
Constitution, together with Article One, Section 9, of the Constitution,
in support of their motion to dismiss. Brady v. Maryland, 373 U.S. B3, 87 (I963)
is cited for the proposition that "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of tie good faith or bad
faith of the prosecution." Commonwealth v. Chapman, 255 Pa. Superior Ct. 265,

336 A.2d 994 (I978) holds that the B_ra_dLrule applies equally to destruction of the

 

- evidence situations.

The leading case addressing destruction of evidence is
lComrnonweolth v. Chapman, supra, where, in a rape case, eight items of evidence
were destroyed by the police custodian during the interim period between the
defendant's original trial and retrial, in the belief that these items had served their

purpose at the first trial and a retrial was not contemplated. The Superior Court held,
as to seven of the unavailable items, that the defendant was not impennissibly
deprived because of the existence of secondary sources such as test reports and
recorded observations which appropriately substituted for the destroyed items. 7The

eighth item, a pair of undershorts found at the scene, was held to be of a different

 

1 character.
At the time of the defendant's arrest he was totally sans undershorts,

and thus was deprived of the Opportunity to demonstrate that the shorts found at the
scene were not his, as the simple expedient of trying them on could have disclosed.

The case was therefore remanded for an evidentiary hearing as to whether the

destruction of the shorts amounted to a denial of due process.

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The instant defendants were afforded a Chapman-like hearing before
Judge Marshall and their motions dismissed. Defendants have attempted to distinguish
Chapman from the case at bar on the ground that the destruction in Chomn was
grossly negligent, whereas the Move destruction was intentional. A careful reading
of Chapman reveals, however, that the motivating factor underlying the destruction

.

of evidence is irrelevant in determining the existence of a violation, 
"the good faith or bad faith of the prosecution is irrelevant . . . it is the effect
on the right to a fair trial, not the prosecutor's state of mind, that results in
reversible error." (Quoting Commonwealth v. Jenkins, 476 Pa. 4-67, 383 A.2d I95
0973).)

Thus, even assuming the bad faith destruction of the residence and
tree,(2ihe instant issue turns, under on whether the house and tree were
"material" to the guilt or innocence of the defendants.

The term "material" was defined by the United States Supreme Court in

 

United States v. Agurs, 427 U.S. 97 U976):

 

The proper standard of materiality must reflect
our overriding concern with the iustice of the finding of
guilt. Such a finding is permissible only if supported by
evidence establishing guilt beyond a reasonable doubt. It
necessaril follows that if the omitted evidence creates
a reasonable doubt that did not otherwise exist, constitutional
error has been committed. This means that the omission must
be evaluated in the context of the entire record. If there
is no reasonable doubt about guilt whether or not the
additional evidence is considered, there is no iustificatian
for a new trial. On the other hand, if the verdict is
already of questionable validi additional evidence of
relatively minor importance mig be sufficient to create
a reasonable doubt.

at ll2-l3 (footnotes omitted). Accord, Commonwealth v. Whaley, Pa. Super.
Ct. 434 A.2d  47}50.

 

Applying the Agurs materiality standard to the instant case, this Court is

convinced that the house and tree, even if preserved. would not create a

-lo-

 

 

 

 

 

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u-u-

 

. other police and firemen who were wounded were also stricken an the Pearl Street

 

 

 

reasonable doubt as to the guilt or innocence of these defendants. This conclusion
is compelled after reviewing the videotapes and the location of lhe house; (2) the
tree in relation to the house; (3) the police of?cers in relation to the house; and,
(4) the location where Of?cer Ramp was killed and where the seven other police
and fir\emen were wounded.

At the time of the shootout. all nine defendants were located
in the basement of 309 North 33rd Street. Officer Ramp was killed while standing
next to a telephone pole on the north side of Pearl Street -directly across from the

Pearl Street windows of the basement where the defendants were located. The

side of the basement or on the corner of 33rd and Pearl Streets. The defendants
argue that the tree was material to their defense because a Commonwealth witness,
Of?cer Robert Hurst, testified that he saw approximater four or five shots fired
from the 33rd Street basement window strike the tree. N.T. 3/5/79, Memo
Marshall at 36. The defendants argue that the destruction of the tree prevented
them from rebutting Officer Hurst's testimony; impeaching his credibility. Their
contention is unimpressive. .
Officer Hurst's testimony in this regard pertained merely to events
occurring during the first fusillade from the basement - not the valleys after the
cease fire which killed Officer Ramp and wounded the others. At best, Hurst's
testimony, there fore, related merely to one prior episode in the scenario. Even

if successfully attacked, such a result could not be deemed as exculpatory.



 

.- 

 

At the time Officer Hurst testified he saw these four or five shots
fired, a fire hose was pumping water through the 33rd Street basement window. The
videotapes reveal that there were four shots fired from the basement which passed
through the firehose's water stream and struck the tree. This Court finds that ,under
Chapman, the videotapes were sufficient secondary evidence to enable the defendants

to test Officer Hurst's testimony. _Sle_e_ also C__o_rnmonWealth v. Whal_e_y, supra and

Eommonwealth v. M02, 234 Pa. SUper. Ct. 463, 341 A.2d 505, cert. denied, 423 

 

996 (I975). With respect to the house, the defendants contend that its destruction
lshortly after the shootout constituted a Mviolation because they were deprived
lot the Opportunity of obtaining "exculpatory evidence." Of course, evidence is not
exculpatory merely because the defendants label it so. Commonwealth v. G_e_e,
467 Pa. I23, 354 A.2d 875 (I976). Rather, exculpatory evidence is that which
extrinsically tends to establish the defendant's innocence of the crime charged, as
differentiated from that which, although favorable, is merely collateral or impeaching.
?51 at l3l, 354 A.2d at 878. ELECimr-nonwealth v. Hic_l<s_, 270 Pa. Super . Ct.
15445:, 4? A.2d 1220 0979); Commonwealth v. Lochmo_n_, 265 Pa. Super. Ct. 429,
402 A.2d 513 (1979). Moreover, there is no presumption that the house, had it not
been destroyed, would have yielded exculpatory or material evidence favomble to the
.defendonts. Sfiggmmonwealtn v. Whale Super. Ct. at 434 A.2d at 1

ISO.

 
 
 
 
 
  

Viewed in this light, it is clear that the Move residence was not
material to the guilt or innocence of the defendants and would not have yielded
exculpatory evidence. Although the defendants argue that they were deprived of the
opportunity of independently testing whether the bullets originated from the basement,

this deprivation does not, standing alone, constitute a Brady violation. Si
?Egmmonwealth v. Mace, 234 Pa. SUper. Ct. at 47l n.8, 34l A.2d at 509 n.8.
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. 

..

 

 



in destruction of the evidence cases, the suppression court must hear testimony from
all available witnesses and review all other available sources so as to reconstruct
the evidence as it existed prior to its destruction. v. 
255 Super. Ct. at 286, 386 A.2d at l004?05. Additionally, it must be
demonstrated with assurance that the evidence would have been favorable and
material had it not been destroyed. 29.9.: at 287, 386 A.2d at l005. This
procedure was obviously followed by Judge Marshall who reviewed the videotapes
of the entire incident and heard testimony of witnesses present at the scene.
These secondary sources, coupled with the fact that there was no demonstration of
the impossibility of lines of fire from the basement to the various officers and
?remen leads to the conclusion that their inability to test the origin of the bullets
3
did not constitute 0 Brady violation.
The defendants next argue that the destruction of the residence

prevented them from impeacl?ing the credibility of Commonwealth witnesses who
(I) testified that shots were fired from the basement into the first floor floor boards
where the witnesses were standing, (2) testified that they observed some of the
defendants in the basement with firearms, and (3) testified that they saw a platform
in the basement with weapons on it.  nstructive with respect to the question of
whether impeaching evidence is material within the meaning of Brady, is the United
States Supreme Court's holding in Giglio v. United Stat_e?, 405 U.S. l50 U972).
There the Court stated:

When the "reliability of a given witness may well
be determinative of guilt or innocence non-disclosure of
evidence affecting credibility falls within this general ru e.
We do not, however, automatically require a new trial
whenever ?a combing of the rosecutor's files after the trial
has disclosed evidence possib useful to the defense but
not likely to have changed the verdict . . . A finding
of materiality of the evidence is required under Brad . . .
A new trial is required if "the false testimony could . . .

in any reasonable likelihood have affected the iudgment
of the iury . . 

Ld_._at 154 (citations deleted).
.43.-

 

 

 

 

 

In the instant case, the reliability of the Commonwealth witnesses who
testified that shots were fired from the basement into the ?rst floor floor boards was
not determinative or material to the guilt or innocence of the defendants. This is
borne out, in part, by the fact that the defendants were not charged with any crimes
stemmihg from shots allegedly fired through the first floor floor boards. Rather,
the defendants were charged with murder and attempted murder stemming from shots
fired at police officers and firemen who were standing outside the residence on the
Pearl Street side of the basement. Of course, if the Commonwealth's sole evidence
locating the origin of the fatal gunshots had come from the witnesses standing on
the first floor, their reliability might possibly be material to the defendants' case.
This is not the case, however. In fact, the Commonwealth presented numerous
witnesses standing Me the residence who testified that they also heard gunshots
fired from the basement. Thus, even if this Court disregards the testimony of which
the defendants complain, there is overwhelming additional evidence that the defendants
fired shots from the basement. N.T. Trial l7.43, 26.l8l, 28.l03, 3l.77,
32. 06, 34.3l

The defendants next contend that the razing of the house prevented them
from testing the credibility of police officers who testified that they saw some of the
defendants in the basemeht with ?rearms. 4 The crux of this argument is that the
destruction of the house prevented defendants from independently testing the lighting
conditions in the basement. This contention is without merit since the observations
were made by witnesses located only a few feet from the basement windows in the
morning when there was an abundance of sun light. These witnesses, in fact, were

cross-examined by defense counsel as to the lighting conditions in the basement.

44..

 

 

th respect to the destruction of the

who testified they saw a r?
This argument may be 

platform in question was photographed and the photographs
I

The defendants' final argumett wi

  
 
 
  
 
    
 
 
  

of police officers

eals with the credibilit

house 
piled thereon.

platform in the basement with firea

disregarded since the
monwealth at trial.

introduced by the Corn
es Mirarchi, Jr.

Rule 1100.
nted the Commonwealth's


lIl . RULE 1100

The defendants next argue that Judge Charl

exten This motion

I979 gra

improvidently granted the Commonwealth's motion to
Judge Mirarchi who, on June 4,
on the defendants'

was argued before
following a decision

1100 to ?seven day
3.56. TestimOny

I petition to extend Rul
er 5, 1979.

N.T. 6/4/79, Charles Mirarchi,
1979 and Septemb

ication 

heard between May 31,

motion to suppress identif
cember

suppress wa
identification on Do

on the motion to

of

denied the defendants' motion to suppre

Judge Mirarchi
rial commenced on December IO, I979 -- within seven days

5, I979, and 



\l Judge Mirarchi's decision.

the defendants' argu
did no
"(a)ny order granting such appl

ment is that by setting on "open ended"

comply with the requirements of

I The gist 

run date, Judge Mirarchi
icotion

I and ?floating

Rule which provides,
fy the date or period

in part, that
within which the trial

have waive

shall be commenced 

shall speci
this issue since they

however,
pursuant to Rule 1100(f).

A.2d 436 (I978). (Defendant,
Rule 1100, waived thi

21W

who never

(emphasis supplied) The defendants,
a written motion to dismiss

failed to file
Ct. 355, 396

. Super.
even if

for dismissal under

issue 

v. Jackson, 261 
273 Pa.

Commonwealth v. El,
254 Pa. SuPer. Ct.

Commonwealth v. Reynolds,
I

filed a written applicatio
de an oral application to dismiss) $532133

he mo
416 A.2d 1058 (I979

Super. Ct. 1
454, 386 A

.?2d 37 (1973).

 

 

 

 

 

 

Assuming that the issue is not waived, the defendants' argument is
nevertheless meritless. Judge Mirarchi unquestionably set a period within which the
trial was required to commence -- seven days after his decision on the defendants'
motion to suppress identi?cation. Inasmuch as the motion to dismiss, before
Judge Marshall, based on the destruction of the evidence issue had taken over
four ihonths simply to present the testimony, the selection of a specific future
date would have been whimsical at best. Rather, Judge Mirarchi, anticipating
another motion, which turned out to be over three months long, gave
the Commonwealth seven days after resolution of the motion before him to try
the defendants. Obviously, Judge Mirarchi complied with the dictates of Rule ll00(c)

by specifying the "period within which the trial shall be commenced."

IV. WAIVER OF COUNSEL AND RELATED 

Numerous errors have been assigned by defendants under this subtitle,
ranging from the propriety of permitting the defendants to appear pg Eta an
allegation that there was something improper in permitting counsel to proceed
with the defense after defendants' eiectment from the courtroom and purportedly
against defendants' desires. In the first instance, we shall place these allegations
in their factual setting and, at a later point, the controlling law will be cited
to demonstrate the lack of merit in any of these contentions.

It is first averted that the defendants were illegally permitted to
represent themselves. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525
(I975) holds that such right is guaranteed to a defendant in a state court criminal
proceeding if such choice is made voluntarily and intelligently. 

Commonwealth v. Africa, 353 A.2d 855 (Pa. Commonwealth v. Davis,

 

388 A.2d 324 (Pa. I978) and Constitution, Article One, Section 9).



 

 

 

 

Pa. R. Crim. P. 3 B(c) implements this principle by requiring the iudge to ascertain
on the record whether the waiver of counsel is knowing, voluntary and intelligent.
Numerous cases delineate the required areas to be covered in the
formulation of such determination. See also Commonwealth v. Fowler, 27l Pa. Super.
Ct. 138, 412 A.2d 614 (1979); Commonwealth v. Hauser, 265 Pa. Super. Ct.
135,301 A.2d 337 (1979); Commonwealth v. Charlett, Pa. Saper. cr. 

422 A.2d 659 Commonwealth v. Weiss, Pa. Super. Ct. 432 A.2d
1020 (198?.

A reference to the trial record will demonstrate the meticulous colloquy
conducted in this case, which included numerous warnings and admonitions which
transcended these essentials. Not only were the defendants queried, but the standby
counsel were similarly interrogated. The severity of the charges and all attendant
circumstances were thoroughly described to defendants and the Court went so far as
to attempt to dissuade the defendants from proceeding E9 Apparently, the
thrust of this assignment is not that anything in the colloquy was omitted or was
improper but rather that for some undisclosed reason the Court somehow erred in
permitting defendants their constitutional right to self representation. The suggested
test for the Court to apply appears to be whether a defendant "knows what he is
doing and his choice is made with eyes open." (Faretta, 2291') in Faretto, the
Court further noted that the defendant was "literate and understanding and was
voluntarily exercising an informed free will." This Court concluded that the instant
defendants met both tests. As the published reports of the courts of this Common-
wealth will reveal, the members of the Move group have traditionally demanded

and been granted the right of self representation.

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Pardoxically, the defendants' next argument (after complaining that the
Court erred in granting this right) was to the effect that error occurred in terminating
their right of self representation after eiectment from the courtroom as a result of their
misbehavior. In this connection, attention is directed to the fact that this precise
possibility was mentioned by the Court when the ground rules for the trial were

described, at its inception. Additionally, the defendants were not eiected until they

 

had repeatedly behaved in a manner requiring their ouster. This trial began in
December of I979 and the right of self representation was not terminated until Januaryl
23, I980. The sequence of events, and the court's forebearance until ouster became
inevitable,may be ascertained from the record.

The propriety of the defendants' eiectment from the courtroom is next
challenged, together with the assertion that their constitutional rights of confrontation
were abridged. Again, a mere cursory review of the trial record will amply
demonstrate the Court's total iustificat ion in this regard. It would appear that little
purpose would be served by attempts to describe the numerous episodes of outrageous
behavior perpetrated by the defendants and their followers in the audience upon this
Court and the Commonwealth, and it is to be devoutly hoped that an American court
will never again be exposed to such abuses. Quoting from the record could be only
of interest to students of the obscene, profane and scatological. Faced with these
attacks, the record will indicate that the Court indulged such outbreaks on numerous
occasions until the demands of iudicial decorum and dignity required defendants'
ouster. Justice Roberts in Eornmonwealth v. Africa, supra, (citing Illinois,
397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2nd 353 (1970), enumerated the options
available to a court faced with assaults of this nature. It is to be noted that all
procedures suggested by ill? and 11% were carefully followed, including selection

-13-

 

 

 

 

of the least onerous option. Any thought of selecting a contempt citation, in
this homicide case, would have been absurd. 

Following defendants' eiectment from the courtroom and termination
of their are status, extreme care was taken to permit the defendants to return
to the courtroom albeit not as their own counsel. Initially, the defendants
were brought to the courtroorn on a daily basis for both the morning and afternoon
session, and offered the privilege of regaining the courtroom if they would promise
to behave. In view of the fact that this procedure consumed far too much time
(bearing in mind that there were nine defendants and each was required to be
brought from the seventh floor cellroorn to the courtroom, with resultant battles
erupting between defendants and deputy sheriffs) arrangements were therefore made
to merely bring them to the courtroom at the Opening of each day's trial. This
procedure was vehemently opposed by defendants and they requested that they not
be brought to City Hall from the prison and asked that they be permitted to remain
at the detention facility -- which request was granted. That all of the defendants?
rights to regain the courtroom were observed will be further indicated by a letter
directed to each defendant from the iudge, a copy of which is attached 
outlines the safeguards instituted by the Court to enable rue-entrance to the courtoom
at any time upon a promise to behave. At no time did defendants utter any such
promise, but rather, after expulsion from the courtroom and termination of their
pr: s: representation, they contented themselves with unacceptable evasions.

The nest assignment of error is charged in the following situation:
The defendants' all rights having been terminated, standby counsel were

-19-

 

 

 

 

 

uncertain as to their appropriate roles and representations were made by counsel

to the effect that they had been instructed by defendants to refrain from any
activities on behalf of the defendants. At this point, a Petition for a Writ of Pro-
hibition was filed by defense counsel in the Supreme Court of 

(I980 Miscl. Docket No. 82) accompanied by a prayer that the Court assume
plenary ?iurisdictian for the purpose of instructing counsel as to their future participa-
tion. The Petition for the Writ of Prohibition, based on the allegation that the
defendants had been improperly excluded from the courtroom, was denied by the
Court and the Supreme Court appearance was confined solely to the request for
instructions. We were informed by the petitioning attorneys that the Supreme Court,
in no uncertain terms, ordered them to ignore any client instructions to remain
inactive, and counsel were directed to participate in the trial with the obiective of
achieving a iust and fair verdict, including the cross examination of witnesses, the
making of pertinent obiections and presentation of available defense material. We,
of course, complied with the Supreme Court's mandate and cannot comprehend that
error was committed in so doing.

Although not required by authority, save for some reference in the
concurring opinion of Justice Brennan in Allen v. Illinois, ?913, and a pious aside
in the ABA Standards, this Court eXplored the possibility of defendants keeping in
touch with the trial through some technological means. Our vigorous efforts in that
direction resulted in the conclusion that such a possibility was neither feasible nor
available.

A distillation of Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525
(1975); Allen v. Illinois, 397 U.S. 337, 90 S. Ct. I057 (1970), and Commonwealth
v. AfricaI 353 A.2d 855 (Pa. I976), reveals the following principles: (I) The

right of a defendant to self representation may be terminated where the defendant

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deliberately engages in serious and obstreperous misconduct; (2). Despite obiectian

by defendant, standby counsel may be appointed and made available if the right

of self representation is terminated; (3) 'lhe right of self representation is not a
license to abuse the dignity of the courtroom nor is it a license not to comply with
rules of\procedure or substantive law; (4) Where the right of self representation is
granted, the defendant will not be heard to complain of the ineffective assistance
of counsel; (5) An accused's technical legal knowledge, as such, is not relevant

to an assessment of a knowing exercise of the right of self representation; (6)

A defendant may lose his constitutional right to be present throughout his trial, and,
thus, it is not unconstitutional to remove him from the courtroom and to proceed
with his trial in his absence where his disorderly, disruptive and disrespectful
behavior was of such an extreme and aggravated nature as to iustify either his
removal from the courtroom or his total physical restraint prior to his removal

he had been repeatedly warned by the Court that he would be removed from the
courtroom if he persisted in unruly conduct that he at all dissuaded
by the trial iudge's use of criminal contempt powers that he was constantly
informed that he could return to the trial if he would agree to conduct himself

in an orderly manner (7) If the defendant's right to be present at his trial is
terminated because of his disrespectful conduct, such right may be regained as soOn
as the accused is willing to conduct himself consistently with the decorum and

respect inherent in the conduct of iudicial proceedings (8) There are at least

 

three constitutionally-permissible ways for a trial iudge to handle an obstreperaus
defendant ?hose disrespectful conduct has made it impossible to carry on his criminal 
trial: bind and gag him cite him for contempt remove him from the

courtroom until he promises to behave. Although binding and gagging is looked upon

with disfavor, such procedure is permissible. The contempt option need not be

-

 

 

 

 

employed where it is obviously ineffective or would permit defendant to profit from
his own wrong. (9) At the beginning of a trial, the court should delineate ground
rules to be followed by defendants and counsel and warnings should be issued as

to the available to correct or deal with violations.

Applying the above principles to all of the contentions argued under this

subtitle the lack of merit thereof is apparent.

V. WAIVER OF TRIAL AND RELATED ISSUES

Traditionally, members of the Move organization have not only asked for
the right of self representation, but have also demanded that they be permitted to
waive a iury. Accordingly, a iury waiver colloquy was conducted immediately
following the colloquy on the request for self representation. All nine defendants
and their counsel were present together but queried individually on this issue.
Sandra Davis had demanded a iury trial, and her case was accordingly severed. It
is noteworthy that defendants do not challenge the suf?ciency of the colloquy but

rather it is now alleged that this Court lacked iurisdiction to try the case without a

iury since the defendants refused to sign a waiver form in accordance with Crim.

P. 1101. 
No challenge is advanced that this iury waiver was not made knowingly,
intelligently and voluntarily, but reliance is placed solely upon the omission of

defendants' signature to the form. The record is starkly clear that each defendant

was fully aware of the contents of the form and the only reason for refusal to sign

was dictated by their religious beliefs. Faced with this issue, this Court unhesitatingly
reached the Draconian decision that the literal requirement of the rule must give way

to respect for defendants' religious beliefs. In this regard, the Constitution of 

vania, Article One, Section 3, states: "All men have a natural and indefensible

-22-



 

 

 

 

 

right to worship Almighty God according to the dictates of their own consciences;

. no human authority can, in any case whatsoever, control or interfere with the
rights of conscience . . . Certainly, this Commonwealth of ,with
its proud history of religious tolerance, should be the last iurisdiction to ignore
relig'?bus inhibitions.

A reading of the record indicates the steadfast and aggressive demand
of the defendants that they be tried without a iury. In our Opinion, this assignment
of error could readily be decided adversely to defendants with the mere observation
that they had waived or were estopped from asserting any position contrary to their
original demands. Had they been denied a waiver, it is inevitable that such
denial would be assigned as error if the iury had convicted. The requirement of
a defendant's signature in the Rule was designed as a shield for a defendant whose
colloquy was somehow insufficient. 'lhe Rule was never mandated, in our opinion,

as a sword for use after luring the Court into acceptance of the waiver.

 

The purpose of Rule is to insure a knowing, intelligent and voluntary
waiver. Certainly, the mere signing of the form adds nothing to the colloquy. If
the mere signing was controlling, the necessity for the colloquy would disappear.
To elevate the signature requirement to the eminence ascribed by the defense would
be to ignore substance and exalt form. In Secretary v. Johrfs Vending Corp.,
453 Pa. 488, 494, 309 A.2d 353, 362 (I973), our Supreme Court has stated:

"In order to avoid an absurd and harsh result, a court may look beyond the strict
letter of the law to interpret a statute according to its reason and spirit and
accomplish the obiect intended by the Legislature." If a statute may be so inter-

preted, a Rule of Court lends itself to similar interpretation.

-23-

 

 

 

 

 

Defendants' sole reliance appears to be the dictum in Commonwealth v.
9532', 229 Pa. Super. Ct. 71, 324 A.2d 512 (1974) 463 Pa. 310, 348 A.2d
846 (I975) to the effect that the requirements of Rule 1101 are mandatory and in
the absence of a signed waiver the Court is "without iurisdiction to try the case."

Carter is hardly controlling in view of the fact that it was reversed on appeal to the

 

Supreme Court on the ground that the failure to raise this particular argument during
post-verdict motions waived appellate review of this alleged error. The Supreme Court's
disposition of this case would, thus, appear to be in disagreement with the Super iar
Court's characterization of the matter as a "iurisdictional issue." Jurisdictional issues
may not be waived. (See Commonwealth v. Mangum, 23' Pa. Super. Ct. I62, 332
A.2d 467 (1974).)

The remaining assignment of error under this subtitle charges that the Court
erred in denying backup counsels' motion on the 22nd day of the trial to withdraw
the defendants' iury waiver and proceed to empanel a iury pursuant to Pa.R.Crim. P.
1102. This rule provides in pertinent part: . . . at any time prior to verdict the
trial iudge on his own motion may order the withdrawal of such (iury) waiver or permit
the defendant, upon motion, to withdraw his waiver." In terms, this rule reserves such
decision to the court's discretion, which was here utilized adversely to 

In Commonwealth v. Kennedy, 271 Pa. Super. Ct. 1, 411 A.2d 1249
(1979), it was held that once trial has commenced a may be withdrawn
prior to verdict only where there is some reason to iustify such a request. The sole
iustification here advanced was to the effect that the outrageous conduct of defendants
somehow made it impossible for the Court to act with the required impartiality.
We respond emphatically that, if this Court felt its commitment to impartiality had
been impinged to any degree, we would have recused ourselves without request.
We were well aware of and subscribed wholly to the principle that recusal is

mandatory if there is any doubt in this area.

-24..

 

 

Defendants bore the burden of producing evidence establishing the
Court's bias or preiudice against them. (See Commonwealth v. Council, 49  Pa.
434, 42  A.2d 623 (I980) and Commonwealth v. Perry, 463 Pa. 5l5, 364 A.2d
0976).) Nothing has been suggested on this issue other than the bootstrap
assertion fhat defendants' conduct inherently poisoned the Court as a fact finder.
We refuse to subscribe to any concept that a defendant may, at his pleasure, with-

draw a valid waiver and insist upon a iury,rnidtria , by the simple exPedient of

repeated contumacious behavior.

VI. EVIDENCE OF PRIOR CRIMINAL CONDUCT

I

II

 

 

The defendants argue that this Court erred in allowing the Commonwealth
to introduce evidence of the defendants' prior criminal conduct occurring May 20 and
June 4, I977. A brief chronology of the events on these two days is necessary
for the proper understanding of this issue.

On May 20, I977, various members of the Move organization, including
five of the observed brandishing firearms on a platform outside of

the Move residence. Inspector George Fencl, Chief Inspector of the Civil Affairs

Unit, on this date telephoned the Move residence and spoke with defendant Delbert

Orr. Orr warned Inspector Fencl that any attempt to eiect the Move members from

the residence would be resisted with arms and explosives. Threats of a similar nature
we re made by various defendants during the course of the confrontation. As a result
of this incident, arrest warrants were issued on May 24, I977, for the following
defendants: Delbert Orr, Merle Austin, Janet Holloway, Edward Goodman and
Phillip Africa.(6)

On June 4, I977, the police attempted to serve the arrest warrants on

the five named defendants. Police who arrived at the scene observed seven of the

defendants on the platform in front of the house. Some of the defendants were

-25..

 

 

s' 'n 0% ill." El".

carrying clubs and threatened to kill police officers who attempted to ascend
A: platform. 8 As a result of these threats, the arrest warrants were not served.

The Commonwealth, in its offer of proof, argued that the events of
May 20 and June 4 were relevant to show the states of mind, motive and intent
at thqdefendants with respect to the murder, attempted murder, aggravated assault
and criminal conspiracy charges arising out of the August 8, I978 shootout. The
defendants, on the other hand, argued: (I) that evidence of the other crimes is
inadmissible to prove that a defendant committed the crime for which he is presently
on trial; (2) that the May 20 and June 4, I977 incidents were too remote in time
to be of any relevance to the crimes occurring on August 8, and (3) that since
all of the defendants were not present on each of these two dates, it was impossible
for this Court to limit the admissibility of the prior crimes to the individual
defendants who committed them.

It is well settled that evidence of a defendant's prior criminal activity
is inadmissible if offered merely to show the defendant's propensity to commit the
crime for which he is on trial. 533, e.g. Commonwealth v. Stanley, 484 Pa. 2,
398 A.2d 63] (I979). Equally well settled, however, are the exceptions to this
general rule:

Prior convictions (and criminal acts) can be admitted

in evidence to show intent, scienter, motive, identity, plan, or

the accused to be one of an organization banded together to

commit crimes of the sort charged, or that such prior conviction

or criminal act formed a part of a chain, or was one of a

sequence of acts or become part of the history of the event
on trial, or was part of the natural development of the facts

Commonwealth v. Ross, 4I3 Pa. 35, 40, I95 A.2d BI, 83 (I963) (emphasis deleted).

Commonwealth v. Styles, Pa. 4-37l A.2d 978 (I981). See also, Common-
0

 

 

 

wealth v. Brown, 489 Pa. 285, 4l4 Commonwealth v. Terry, 462 Pu.
595, 342 A.2d 92 (I979). Numerous cases hold that evidence of prior threats

-26-

 

 

 

 

made by a defendant against the victim are admissible in a homicide prosecution to

prove ill-will, malice See Commonwealth v. Ulatoski, 472 Pa.

53, 37I A.2d I86 (I977). See also Commonwealth v. Glass, 486 Pa. 334, 405 A.2d.
I236 Commonwealth v. Bederka, 459 Pa. 653, 331 A.2d I8I 
Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 Commonwealth v.


Poison, 437 Pa. 432, 264 A.2d 394 (I970).

 

In the instant case, the defendants' threats and show of force on May 20
and June 4 were clearly admissil'le to show their motive, malice and intent to commit
murder, attempted murder, and aggravated assault on August 8, I978. The Common-
wealth established that the shooting death of James Ramp and the wounding of the
other police and firemen was motivated, in part, by the defendants' desire to resist
their eviction from the Move residence. Moreover, the evidence was admissible to
establish that the defendants intenshd to carry out their threat of shooting any police
officer who entered the premises. Finally, the prior threats were relevant to show
the malice necessary to sustain a murder conviction. Commonwealth v. Ulatoslri, 472
Pa. 53, 371 A.2d I86 (I977). In short, this Court ?nds a logical and direct connec-
tion between the events of May 20 and June 4, I97, and the shootout of August 8,
I978. .Sie Commonwealth v. Stanle 484 Pa. 2, 398 A.2d 631 (I979).

The defendants, nevertheless, argue that their threats were inadmissible
because they were not directed at any particular person. This contention is without
merit since evidence of prior criminal conduct is not rendered inadmissible merely
because the threats or criminal conduct were directed at someone other than the
victim of the particular crime for which the defendant is charged. 2g?
Commonwealth v. Bederka, 459 Pa. 653, 33l A.2d I8I (I975) (threats against wife
properly introduced in prosecution of wife's paramour); Commonwealth v. Glover,

446 Pa. 492, 286 A.2d 349 (I972) (threats or assault against a woman's male friend

(held admissible in defendant's prosecution for murder of a different male friend found

in the woman's apartment); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394
-27-

 

 

- A?f'l



W70) (thIeats against and rape of victim's sister-in-Iaw held admissible to prove
?fondant's malice toward victim). 59; mCommonwealth v. guards, l58 Pa.
SCI. 27 A.993 0893) (in a murder prosecution for murder of a police officer, the
admissibility of threats the defendant had made against the police in general ?fteen
gr seventeen months prior to the killing).

The defendants next argue that the May 20 and June 4 incidents were
inadmissible because they were too remote in time to the August 8, I978 shootout.
Although there was a ?fteen-month interval between the August 8, I978 shootout
and the first of the prior two incidents, the length of the time intervening between
the prior criminal conduct and the crime charged goes to the weight, rather than to
the admissibility, of the prior criminal conduct. Commonwealth v. Ulatowski,

472 Pa. 53, 37  A.2d I86 (I977) (events occurring nine to seventeen months prior
to the murder of defendant's wife admissible to prove ill-will, motive and malice);

garnmonwealth v. Chism, 480 Pa. 233, 389 A.2d I04l threats

 

against victim seven months before the murder held admissible to show ill-will and

motive); Commonwealth v. Glass, 486 Pa. 334, 405 A.2d I236 (I979) (threats within

 

a ten-month period held admissible).

both of
Finally, the defendants who were not present at/the May 20 and June 4

(H)
incidents argue that it was impossible for this Court, in determining their guilt, to
disregard the prior criminal conduct of the other defendants. In passing on this

argument, it must be remembered that the defendants were tried before this Court

without a iury. The Supreme Court has stated that judge, as fact finder, is

presumed to disregard inadmissible evidence and consider only competent evidence."

Commonwealth v. Davis, 49! Pa. 363, 372 n. 6, 421 A.2d 179, 183 n.6 (I980).

 

Moreover, evidence competent against one defendant is not rendered lnadmissible
merely because it refers to or implicates other defendants so long as the evidence ls

considered only as to the defendant against whom it is admitted. Se_e_ Commonwealth

-23-

 

 

v. Reidenbaugh, Pa. Super. Ct. 422 A.2d 1126 (1980). This Court has

 

balanced the need for this testimony against its possible preiudice and concludes

that its relevancy outweighs any preiudicial impact it may have on the defendants.

 

See Commonwealth v. Barnhart, Pa. Super. Ct. 434 A.2d 
We the events of May 20 and June 4, I977, were admissible to prove

 

 

defendants' motive, intent, ill-will and malice with respect to the murder of James
Ramp and the wounding of the others on August 8, I978.

The May 20 and June 4, I977 incidents were similarly relevant with
respect to the criminal conspiracy bills. The evidence pertaining to these two
episodes tended to prove an on-going conspiracy culminating in the August 8, I978
shootout, together with the intention and motivation of the defendants to enter into
a criminal conspiracy contemplating the crimes of murder, attempted murder and
aggravated assault on August 8, I978. Defendants have protested that the events of

these two days were inadmissible as evidence of a criminal conspiracy since the

Under law, criminal conspiracy is a substantive offense.
l8 Pa. C.S.A. Section 903. This statute provides, in part:

Definition of conspiracy. - 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:

(I) agrees with such other arson or persons
that they or one or more of them wilrengoge in
conduct which constitutes such crime or an attempt
or solicitation to commit such crime; or

 

(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.
Overt act. - No person may be convicted of
conspiracy to commit a crime unless an overt act in pursuance
of such conspiracy is alleged and proved to have been done by him
or by a person with sham he conspired.

I8 Pa. C.S.A. Section 903 and 

 

 



 

information charging the defendants did not embrace the occurrences on these two days.

 

 



 

 

A reading of Section 903 reveals that the essence of a criminal conspirac'
is the shared criminal intent between the defendant and other persons to commit an
unlawful act. See Commonwealth v. Tate, 485 Pa. IBO, 40l A.2d 353 (I979).

As previously discussed above, it is well settled that the prior threats and criminal
acts of a defendant are admissible to show what his or her intentions and motivations
were at the time he committed the alleged crime. Although the vast maiority of
these decisions have been rendered in the context of a murder prosecution, a number
of courts have in the context of a conspiracy prosecution, admitted the prior
criminal acts of the defendant for the purpose of establishing defendant's intent,
motivation, plan and the defendant's relationship with the alleged co-conspirators.
See Commonwealth v. Pa. 442 A.2d 236 

Commonwealth v. Brown, 262 Pa. Super. Ct. 9, 396 A.2d 457 (I978) (prior plans
and discussions held admissible to prove whether the defendant conspired to commit
the crime for which he was charged); Commonwealth v. Hradesky, I70 Pa. Super.
Ct. 24, 84 A.2d 393 (195]) (in prosecution for attempted extortion, attempted
bribery, conspiracy to commit extortion and bribery, evidence of alleged prior
attempts to extort money were admissible to show defendants' intent, motive,

plan, design and scheme to use his office to extort money )3 Commonwealth v. Barn-E
ha_rt, Pa. Super. Ct. 434 A.2d 19] (1981) (evidence of crimes committed
prior to offense charged is admissible to explain the relationship between alleged
co-conspirators). See also Williamson v. United States, 207 U.S. 425 (I907)

(prior acts admissible in conspiracy prosection to show intent, design, purpose or
knowledge); United States v. Adderly, 529 F.2d 1178 (5th Cir. I976) (offense of
conspiracy requires an element of intent or malice sufficient to allow an exception
to the general rule excluding prior acts of misconduct); United States v. Caldarazza,
444 F.2d l046 (7th Cir. M, 404 U.S. 958 (prior acts admissible

-30-

 

 

 

 

 

 

 

in conspiracy prosecution to show motive); Koolish v. United States, 340 F.2d 513
(8th Cir. I965), 21. denied, 38  U.S. 95l (prior acts admissible in conspiracy
prosecution to show intent, .knowledge, or absence of mistake); 2 Wigmrirg, Evidence,
Section 307 (Chadbourne Rev. I6 Am. Jur. 2d Section 43.

Indeed, it would appear that such evidence is required for more in

a criminal conspiracy prosecution, since a conspiracy can rarely be proved by

 

direct evidence. Our courts have uniformly recognized that a conspiracy is usually I
proved circumstantially. See, Commonwealth v. Holmes, 482 Pa. 97, 393 ATE
397 Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 Commonweal



v. Walters, 463 Pa. 465, 345 A.2d 613 (I975). In Commonwealth v. DeMoa,
401 Pa. 395, I65 A.2d I4 (I960), cert. denied, 365 U.S. 822, the court stated:
. . . Consideration should be given to the background

of the arrangements made by defendants and their methods of

association; where a criminal scheme has numerous actors and

shifting scenes of action the conspirac is often made out by

the association of detached facts and the reasonable inferences

deducible therefrom. Evidence of the acts and circumstances

in fulfillment of the obiect of the conspiracy is relevant. More-

over, 'the actions of the conspirators will be sufficient evidence

to prove Ihat a conspiracy exists.? 

Id: at 409, I64 A.2d at 2] (quoting, Commonwealth v. Musser forests, Ina. 394
A.2d 205, I46 A.2d 7I4 (I958).

Based on these authorities, this Court is convinced that the defendants'
criminal conduct occurring on May 20 and June 4, I977 was admissible as
circumstantial and direct evidence of the relationship between the defendants and
their intent and motivation to enter into a criminal conspiracy to commit murder and

other crimes on August 8, I978.
-31..

 

 

 

 

 

 

VII. ADDITIONAL ASSIGNMENTS AS TO THE SUFFICIENCY OF THE EVIDENCE

The defendants have challenged the sufficiency of the evidence as it
pertained to the individual guilt of each defendant, particularly the women. Previo
portions of this opinion have related an overview of the entire occurrence and
attenKian will now be directed to the events of August 8, I978.

Thus, it was shown that each defendant had barricaded himself or herself
in the basement of 309 North 33rd Street when the shootout erupted and where the
cache of firearms and ammunition was found after apprehension. Numerous Common-
wealth witnesses, plus the videotapes, demonstrated that numerous shots were fired
from that basement at the time of the fusillades and all male defendants were fully
armed. Charles Sims was identified in the basement with a rifle and hand grenade
and William Phillips and Delbert Orr were observed pushing a Ruger Mini l4 rifle
back and forth between themselves and arguing over who should kill the "vampire"
-- Police Of?cer John Managhan. Edward Goodman and Michael Davis each held
a rifle in his hand while ensconced in that basement. Prior to the shootout,
defendant Delbert Orr was heard to soy, "You've been waiting to came ira all this
time, but before you do, you better call home and make sure your insurance is
paid up." N.T. Trial 24.8. Defendant Charles Sims stated, "You smart guys don't
scare us. A lot of your wives will be wearing black tonight." N.T. Trial 24.l45.

All female defendor ts were present in the house and ioined the men
in the basement. At the onset of the police efforts to reduce the defendants to
custody, all defendants were afforded numerous opportunities to vacate the premises
without harm. None of the women complied and all ioined their male counterparts

where the arms and ammunition were stored. All of the women were involved in

.IS

 

one or both of the May 20 and June 4, I977 incidents and ioined in the uttering ol

-32-

 

 

 

threats and the brandishing of weapons. It should not be overlooked that the
defendants, during the various colloquies and throughout the trial, frequently
proclaimed that they were a "family" and acted in unity.

These additional facts, accompanied by the other evidence previously
desckibed, fully convinced the fact ?nder of defendants' guilt for the crimes of
murder in the third degree, attempted murder, aggravated assault and the
substantive crime of criminal conspiracy. Although this Court found defendants
guilty of the crimes of aggravated assault, sentence was not imposed thereon as
it was our belief that these crimes merged with the convictions for attempted murdeli.

In the consideration of the sufficiency of the evidence, the test to
be applied has been well established by numerous cases: "In determining whether
the evidence presented is sufficient to sustain the conviction, the test is whether,
accepting as true all of the evidence of the Commonwealth and all of the
reasonable inferences arising therefrom, Upon which, if believed, a fact finder
would properly have based its verdict, it is sufficient in law to prove the elements
of the crime in question beyond a reasonable doubt." Commonwealth v. Bradley,
48] Pa. 223, 392 A.2d 688 (IP78), U.S. 938. 9'

In our view, the de?endants were prOperly convicted under both the
"co-conspirator" theory and also the "accomplice" theory. Bath theories will be
treated herein, bearing in mind that the present validity of the co-conspirator
situation in law is in some doubt. It is unnecessary that we attempt to
resolve this doubt as we are convinced of guilt under either theory.

Analyzing this case under the co-conspirator authorities, we note that,

once a conspiracy is established, each defendant becomes equally liable for the act

-33-

 

 

.-.- 

 

 

ot the defendants committed in furtherance of the common design. (Commonwealth
v. Ibex, 465 Pa. 482, 350 A.2d 867 0976).) As was stated in Commonwealth v.
9:5, 466 Pa. 582, 353 A.2d 844 (I976), "All theories that are recognized under

 

our law to hold one responsible for the criminal acts of another require the existence
of a\shared criminal intent. It is well settled that the nexus which renders all
members of a criminal conspiracy responsible for the acts of any of its members

is the unlawful agreement."

In proving the existence of a conspiracy, it is not necessary for the
Commonwealth to establish the existence of an unlawful agreement by direct proof.
Commonwealth v. Roux, supra; Commonwealth v. Walters, 463 Pa. 465, 345 A.2d
613 (I975). 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 of co-conspirators have uniformly been held competent
to prove that a corrupt federation has, in fact, been formed'." Commonwealth
v. Holmes, 482 Pa. 97, I05, 393 A.2d 397, 40] (I973) (quoting Commonwealth v.
465 Pa. at 488, 350 A.2d at 870). As an evidentiary matter, under the
co-conspirotor exception to the hearsay rule, the statements of one co-conspirator
made during the course of the conspiracy are admissible against the other co-
conspirators. See Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d (l98l).

Applying these principles, it is apparent that all defendants were properly
found guilty of the crimes charged.

It is equally obvious that all defendants were properly convicted under the
"accomplice theory" of "Liability for the Conduct of Another" as set forth in
the present Crimes Code:

-34-

 

 

 

 

 

Accomplice de?ned. - A person is an
accomplice of another person in the commission of an
offense if:

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

solicits such other person
to commit it; or

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

(2) his conduct is expressly declared by
law to establish his complicity.

All defendants, under the recited facts, were similarly liable as

accomplices under the precise wording of this statute. Commonwealth v. Coccioletti,

 

493 Pa. I03, 425 A.2d 387 Commonwealth v. Jefferson, 27) Pa. Super. Ct.
199, 412 A.2d 882 Commonwealth v. Wilson, 493 Pa. 332, 426 A.2d

 

575 (I981). The "slightest degree" of coop: ration is sufficient for conviction under the
accomplice doctrine. (Commonwealth v. Coccioletti, supra.)

In order to sustain a conviction of third degree murder, the Commonwealth
must prove that the killing was done with malice. Commonwealth v. Boyd, 461 Pa.

l7, 334 A.2d 610 (i975). Malice will be found if the defendant committed the killing

 

with the intent to kill or with the intent to inflict serious bodily harm or if the
defendant consciously disregarded an uniustified and extremely high risk that his actions
might cause serious bodily harm. See Commonwealth v. More, 486 Pa. l23, 404

A.2d 388 (I979). Of course, malice may be inferred from the attending circumstances

 

surrounding the act resulting in death. See Commonwealth v. Brid?, 475 Pa. 535,
38l A.2d 125 (i 977).

-35-

 

 

 

 

One such attending circumstance from which malice may be inferred is
proof that the defendant used a deadly weapon on a vital part of the victim's body.
id. In the instant case, the Commonwealth established that Of?cer Ramp was killed
and Officers Hensen and Krause were iniured by bullets fired from a .223 caliber
Mini-thiger I4 found in the basement of 309 North 33rd Street. _S_eg_ N.T. Trial
39.22-39.23. Moreover, mlice may be inferred from the threats the defendant made
prior to the killing. SeiCommonwealth v. Ulatoslci, 472 Pa. 53, 371 A.2d 186
(1977).

Defendants place great reliance upon the admitted inability of the
Commonwealth to prove the precise identity of the defendant or defendants who
fired the fatal shots. Suffice it to say that the Commonwealth is not required to
prove such fact. Under either the conspiracy or accomplice theory, it is irrelevant
for the purpose of determining criminal liability to prove which of the conspirators
or accomplices attained this highest guilt. Commonwealth v. Coccioletti, 493 Pa.
103, 425 A.2d 387 (1981); Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688
(1978); Commonwealth v. Wilson, 493 Pa. 332, 426 A.2d 575 (1981), and
Commonwealth v. Jefferson, 271 Pa. Super. Ct. 199, 412 A.2d 882 (1979)..

Defendants' post trial motions for a new trial and/or in arrest of iudgment

are denied.

BY THE COURT:


8/7 MALMED, J.

 

FOOTNOTES

 

l. (Pg. 7) Ci of Philadel hia v. Glasse No. 122. Miscl. Docket No. 21
(June 8, lunrepoFfea Imprinted in full at .T. l2/7/78,
Merna Marshall, 67-72)

2. (Pg. ID) This Court is convinced that the house and tree were not
destroyed by the police in bad faith. As previously
mentioned, the house was destroyed for sound reasons.
Moreover, the ood faith of the Commonwealth is
attested to by fact that the defendants were given
access to virtually all evidence, including videotapes

of the shootout, photographs and sketches of the interior
and exterior of the residence and other items in the
Commonwealth's possession. See Commonwealth v. Mace,
234 Pa. Super. Ct. 463, 34min 5U5, cert. denied,
423 u.s. 996 (I975). 

3. (P913) This conclusion is underscored by the fact that no self-defense
or im ssibility claim was asserted by the defendants at trial.
The efense presented no evidence at trial that they did

not fire the shots or that they could not have struck

police officers even if they had fired the weapons.

4. (Pg. l4) Defendant Charles Sims was seen in the basement with a

rifle and a hand grenade. N.T. Trial 25.87, 25.93 and
25.97. Defendant William Phillips and Delbert Orr were
seen in the basement pushing a Ruger Mini l4 rifle back and
forth between them and arguing over who should kill the
"vampire" -- Police Of?cer John Monoghan. N.T. Trial
36. 9 - 36.2] . Edward Goodman was seen in the basement
with a rifle in his hand. N.T. Michael Lavis
was observed holding a rifle in his hand. N.T. Trial 26.lB.

5. (Pg. 25) Delbert Orr: See N.T. Trial 49.57-49.53, Commonwealth
Exhibits (photog?r?Jhs) C-l25, l26, l27, I29, I30, l3l, l39,
I40, MI, 14:, I44.

Edward Goodman: See N.T. Trial 49.59, Commonwealth
Exhibits l32, I33, I34, l39, I40

 

 

 

6. (Pg. 25)

 

 

7. (Pg. 25)

 

 

 

8. (Pg. 26)
9. (Pg.26)

 

 

10. (Pg. 27)

Il. (Pg. 28)

 

 

The following defendants were not proved to be present at the

Merle Austin: See N.T. Trial 49.54; Commonwealth Exhibits
(photographs) C-I25, I26, I27, I38, I39, I40

Janet Holloway: See N.T. Trial 49.61; Commonwealth
Exhibits (photographs) C-l26, I40, I43, I44

William Phillips: See NJ. 49.64, Commonwealth Exhibits
(photographs) I42, I43, I44

The five named defendants were charged with the following
crimes: disorderly conduct; terroristic threats: rioting;
recklessly endangering another person; criminal conspiracy
and weapons offenses. Defendant Charles Sims was taken into

custody at around 3:25 p.m. on May 20 and charged with weapor
offenses related to the Move Inga.

Present on June 4, were:

Delbert Orr: ENJ. Trial 49.160; Commonwealth Exhibits
(photographs) C-I2I, I22.
Jeanene Phillips: Trial 46.l34; Commonwealth
Exhibits (photographs) C-IIB, I20
\?ViIl?iaam Phillips: aCommonweaIth Exhibit (photograph)
Janet Holloway: See N.T. Trial Commonwealth
Exhibits (photograplETC-II9,  2l
Edward Goodman: See N.T. Trial Commonwealth
Exhibits I20
Michael Davis: See N.T. Trial Commonwealth Exhibit
hotograph) . .
ebbre Sims: N.T. Trial 46.I46

Delbert Orr; Janet Holloway and Michael Davis

 

 

 

As a result of this incident, the following defendants were convicted
of disorderly conduct, terroristic threats and criminal conspiracy;
Jeanene Phillips (C. . Dec. '78 Na. Debbie Sims (C.P.

I


gets. '78 No. Michael Davis (C.P. Doc. 78 No 948--
51)

Prior threats are also admissible in an assault prosecution. See
Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (I975)

The following defendants were not proved to be present at the
May 20 incident: Jeanene Phillips, Michael Davis, Debbie Sims.

June 4 incident: Charles Sims and Merle Austin.

 

 

 

 

O?Ac?n-sh?du 

March 20 I980

TO: ALL MOVE DEFENDANTS

\On Monday, March l7, I980, you again stated that you did not want to
be brought to the City Hall cell room from the prison for the daily trial sessions, and that
you would resist with force any attempt to compel such procedure. You demanded, in
fact, that this procedure be discontinued. Accordingly, and as you have been told, all
nine defendants will be permitted to. remain at the prison during trial sessions and all nine shall
be permitted to gather in a conference room at Holmesburg Prison which has been set aside
for this purpose. No guards will be in the conference room with you during such periods.
A direct telephone line has been installed in the conference room and connected with the
courtroom and the court chambers in order that you may telephone the court and indicate
your desire to re-enter the courtroom upon giving your promise to behave and obey the
orders of the court. In addition, you may call the court at any time during trial sessions, 
whether you are in the conference room or not, upon notifying the duty officer of such
desire. In the event you notify the court as described, the trial will be interrupted and

you will be brought to the courtroom to present an opportunity to regain entry in the customary
fashion previously followed.

In the event you do not use the direct line, the telephone number in the court-
room ond the court chambers are MU 6-4304 and MU 6-4309. 

The above arrangements are subiect to change at such time as the prosecution
has rested and the stage of trial is reached for the defendants to present a defense.

BY THE COURT:

M?rjj

I.