COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS v SEPTEMBER TERM, 1978 EDWARD GOODMAN NOs. 101-128 CHARLES SIMS NOS. 129-156 DELBERT ORR NOS. 157-184 WILLIAM PHILLIPS NOS. 185-212 JEANENE PHILLIPS NOS, 1473-1492 MICHAEL DAVIS NOs. 1513-1532 DEBBIE sts NOS. 1533-1552 MERLE AUSTIN NOS. 1553-1572 JANET HOLLOWAY NOS. 1573-1592 OPINION SUR DENIAL OF DEFENDANTS" POST TRIAL MOTIONS Inexorably, at in o Greek trogedy, the monumental contempt and defiance of these nine members of the Move group for law ond the entire Philodelphio ‘community reached o crescendo on August 8, 1978, withthe rensaless murder of officer James Ramp and the savere wounding of sven other policemen and All defendants were convicted, in a bench trfal, of murder in the third degree, criminol conspiracy, attempted murder and aggravated exsault and battery. Post trial motions hove been argued and denied ond the defendants have been sentenced. Pre-tr suppression motions challenging the validity of the dé forests, their identification and of the plain- 1 observations of police officers were denied separtely by the Honorable George Ivins end the Honorable Charles P. Mirorchi, Je.y in opinions containing discusions of the law ond findings of fact. We have carefully reviewed these matters and concur with the conclusions set forth. ‘An additional motion, heard by the late Honorable Mema Manhell, dealing with the destruction of the Move house and o tree fronting it, was ruled adversely to defendants cond will be discusted infra. —_— a EXHIBIT "A"Uniquely, police comeramen and television stotion WCAU tape recorded ‘the entire incident from the first appearance of the pol ‘equipment on the scene until the Final opprehension of the defendants. This was possibly the first situation history where th ‘entite eriminel event was captured on film, togsther with accompgnying sound. The trier of fact wos thus not relagoted to forming conclusions from the descriptions of wire but was cided in orriving at @ verdict from the | reenactment of the actual episode. \ This opinion shell not attempt any lengthy discussion of the purported | beliefs and lifestyles of the Move group, in which these nine defendonts have |. repeatedly cloimed membership and adherence. The reported opinions of the courts | of this Commonwealth are replete wi such detail. Suffice it te say that these nine defendants have proclaimed their allegiance to one John Africa, oppare tly deemed by them to be the repository of all knowledge and the supreme orbiter of all laws reloting to human behavior. We have referred to these beliefs in order that the | sloganeering ond uteronces which disrupted the trial moy be better understood. The rine backup coumtel hove ingeniously produced © walter of exign- i) ments of error. Although careful consideration hos been given to all a ignments, || we disregard os potently meritless all except those treated herein. In our opinion, the ignored assignments, individually and in total, did not rise to any imperotive fing the gront of @ new trial and/or an arrest of judgement. N This on will, therefore solely discuss the following: 1. SUFFICIENCY OF THE EVIDENCE from the Philadelphia Ceporiment of ses and Inspections ottempted on numerous l | Responding 10 complaints by neighbors and City officials, inspectorsoccasions 10 examine the Move headquorters at 307-209 North 33rd Street, Philadelphie to oscertain whether these premises, occupied by multiple residents of the Move group, | |e the eqn fhe filadioHouing ond Fi Coes. onary ta Joven by inpcon eanine te pein wer tleisly Had by he 'loccupants ond eventually the situation resulted in litigation. \ (On January 20, 1975, the Soprame Court of Penaylvonia inthe com "os chy of hitiphia v. Donald Glausy, Eaten Disict, Nunbar 122, Micelle Uecker Nonbe 21, gtd 9 Wei of Soperiedenscindond oem ei inspectors being permitted to enter the premises to determine the existence ond extent of ony violations of the Philadelphia Code. The Court further directed the Honorable G. Fed DiBono of the Philadelphia Cour of Common Pl to hold on evidentiary Fheoring to determine whether the con Hon upon which the supersedeos wos granted iad been observed. On June 2, 1976, Judge Di8ona filed ce findings of fact ond concluded, thot the premises presented a serious hazard to the health, | atety ond welfere of the residents of neighboring prope 1 ond it wor further found thot the occupants of the premises hod refused to permit official inspection, even by \\on “inspector of their own choosing." Judge DiBona further stated that blatant H | violations had appeared ond the occuponts had absolutely no regard for the implement: tion of ony expects of said codes," end that rats and dogs had free run of the premises. Despi the described court orders, the Move omonization successfully resisted oll efforts on the part of the constituted author ‘A stockade oF parapet wos erected oround the perimeter of the properties, windows were sealed ond all eceess denied. Bullhoms were proc 1d by the occupants and inflammatory diatribes in the highest of de 1s spewed forth from the paropet accompanied by the wearing of pueudo militery uniforms and the brandishing of weopent, including semi-automatic ficearms.| seven of the present defendants opprared on the petform ‘armed with clubs and ‘On Mey 20, 1977, numerous members of the Move organization, including five of the defendants, we thus observed on the stockode, dresied ond ‘amad es described obove, Defendant Delbert Orr wamed Inspector Fencl et thet time that ony attempt fo elect the Move menbers from the residence or to tke them into eustody would be resisted with arms ond explosives. Threats of © similar nature ‘ were mole by vorious detendants during the coune ef this particular confrontation, ‘On June 4, 1977, the police ogoin attempted to serve arrest warrants \ con five of the defendants who had oppeared during the May 20, 197 incident. threatened to kill police officers who might attempt to axcend the porope!~ In topes of compelling surender, © police blockade was then thrown ebout the propery, which egoin ted 10 the continual voicing of treat end cbuie- Ultimately, the City edministation and Move, represented by Oxeor Goskins, Esquire, attempted to negotict @ settlement of the imposie. As patt of the settlement ogreement, the Move menbers agreed to vacate the premises within ninety days ond the full terms of the agreement were set forth in an order dated Moy 3, 1978, ised by the Honorable G. Fred Dione, now dececsed. The defendants contemplvously yrored their own agreement ond the court ‘ccdor ond remained in the premises. On August 2, 1978 (the expiration of the rinety-doy period) Judge DiBone found these defendonts, inter in violation of the court order, ond bench worrants and wits of eHachment were issued for these nine defendants ond others. It was the attempt by the police to execute Judor pitone's worrants ond atjechments which precipitated the armed resistance and reslted in the murder of Officer Ramp and the wounding of the ether peace officer. aThus, on August 8, 1978, @ detachment of Philadelphia Police and Fire- men ottived ot the Move headquarters at approximately 7:00 a.m. Police equipment the occupants by bullhorn advising them to vacate the premises and oxuring them lof sofe conduct. Monsignor Charles Devlin, @ pri \ similar Svertures ond assurances. Walter Palmer, descr 1d 08 © community octivist, Imode similar representations and attempted fo perwwade peaceful evacuation. These entreaties were ignored and were met by the customary obscene rejoinders for which this group ix noted. At this point, it wos ascertal lbosement of 307 North 33rd Street, where it was later discovered that a veritoble lorienal of fireasms and ammunition had been stored. Attempts were made to dislodge the occupants by training “deluge” water hose Yo the bosement windows of premises 309, but ago! ‘without success. The First sign of violent opposition from the bazement then took place, con ing of « fusillade of shots, some of which could be observed i i i tearing through the streams of water. The barrage wos retumed by the police, but no i lone oppeared to have been struck by this exchonge. A cease fire was then ordered by Deputy Police Commissioner Solomon, an order with which police personnel compl During this ceose fire, the \ce wos ogein broken by onather outburst of shots from the enteenched Move group. Single ond di 1 shots by that defendant holding the Ituger Rifle (Exhibit C-78) then wantonly killed Officer Ramp and seriously wounded [Officers Stewart ond Heston, at @ time when police were not retuming fire. Four ' lother peace officers were seriously wounded by discharges from basement firearms. Following these tragic occurrences, the police succeeded in gaining entrance to the 1d that oll occupants had retreated into the | | | \ leveled the stockode ond opened the boarded windows. Police Officer Powell edérened \ designated by Cerdinal Krol, modecompound and apprehending all defendants. On this convincing evidence of @ coherent, pro-plonned determination to resist arrest, by means of violence nd threats of violence, coupled with @ display of loaded weapons, ond climaxed by o rmurderovs assault, these defendants were properly convicted of murder in the third degrer and ossociated charges. Il. DESTRUCTION BY THE POLICE OF THE MOVE RESIDENCE AND A TREE FRONTING THE BASEMENT WINDOWS ON THE Sind STREET SIDE OF 309 NORTH 33rd STREET Vorious motions were Filed by defendants proying for relief os @ result of the demolition by the police of the Move premises ond the described tree. Ex= tended hearings took place pretrial before the late Honorable Mera Mershall, who led adversely to the defendants. Unfortunately, Judge Marshall's findings end conclusions were not reduced to written form, although there ne question but thot the defendants! motions in these respects were denied. It incumbent upon Us, therefore, to review that record. We have done so and find ounelves In accord with her order. iminarily, it appeors that the defendonts appeared pro se. during the hearings before Judge Manhall on these motions. Pouibly os 0 consequence, the record before Judge Manthall oppears barren of any effective attempt by the defendants to demonstrate prejudice -- rather, the defendants appear te rely on the contention thot the destruction of the compound and free, ipso facto, required dismissal of the charges ogcinst them. The burden of proof in sold motions was, of course, Imposed upon the defendants, who uiterly led to establish the necessary prejudice. trody vz Maryland, 973 U.S. 83, 67 (1963); Sullivan v. Cuylery 446 U.S. 335 (990) Conmonwealth v. Weathers El, 485 Fe. 28 (1979). Conceivably, we could dispose +but, nevertheless, we shall consider of defendant’ motions on the above ground advonced fer discussed were, in the rainy ‘ond have represented wes ot length. The arguments hereo ‘counsel who supplanted the defendants midc¥ the by those sagose properly of the defendants) motion 19 Sanit it is necessary to discuss briefly whe ic were located. The Move compound wos sityoted on the southeast comer of stroet bordered the focility lets in Philadelphic. Thirty-thied them ot oll ogee since pn the residence ond based on the destruction, | 33d ond Peort Sire sheet on the nonin. The Move residence octeally comtisted sh Bed Street, which shored @ common Pony wall: ‘of the party wall ond 307 Nerth 33rd [eterno Pe! ot oe hoe, 307-30 Ne |) 399 North 33rd Street was on ‘the north he two connecting houses were each ster on the sou side of the parry wall: 1 bavement between iuee soris high and contained o basement with ecny o65e¥ 18 the ‘On the north woll of the bavement of 307, the si Iy large hole for en oil intake pipe which ‘On the west wall of the focing Peor! + |) the two howses- | street, were two windows ond f I gased tough the basement wall: ovement of 309, the ty wos destroyed ‘stood I ide fing 39d Steet, there wos one window ‘The tree whi i on the 23rd Sheet side of 307 Nonh Sed Stosty epproximately four feet in front window. The decision by City oiciols Yo demolish the Move residence was a ached in 1976 following the Pennsylvania. S¥prem® Court Order adopting the residence presented © serious health end 0 judge G. Fred DiBona's Findings thet cond dogs abounded. fonts, ond that rat safety hezard to the neighborhood +e uring the Tengthy peri fom 1976 ont the sootovte numerous conferences took loce between City officials ond the Move orvPr together with their counsel - athe record demonstrates that oll portiipants understood that the premises would be ematished ot sch Hime os Ht had been vacated, pursant f2 the ooreement reached before Judge DiBone. (On the doy of the confrontation, after the defens ts hod been removed and apprehended, the police entered the premies ond seized in the 307 bosement © Jorge coche of Grecrm, ammunition, and other items, During tis time the entire saerir of the howe wos extensively photographed ond sketched ond ll materials vecured were subsequently forished to defendants end their esinil fr inspection ond the hours of 12:30 pum, and 4:00 pam. on August 8, 1976 |p an Cer indy Patios Comision th Ov: he Ss \ veer folly sozed, the tee removed and the lt bulldozed 19 level+ ‘The record before Judge Morhall hicates thet, eside from the existence of the health ond | tery hazords, the demo ton occurred for odéitionel reasons: (I) to prevent Itt re-occupation by the mobs eongregating around police beriersy including such Move TT ene we tre i he fe as etna |Tv eee nad pane fm ir th eins tn | nemetves, ond (2) 0 prevent the howe fom becoming « cult eymtol- After the jecsiwre a he huge sim of mony by the City cnmcton wih the wot Joe cevties ver « momber of yeti nln the dee of the cenenaieny We officials understondably hed no wi of the Hydra or the Phoenix. \ the ove fetuol rcittion appears to demonstrate the good faith of the | demolishing authorities. In our view, however, os will be discussed, the question of | good feith or bad faith is inelevant. 'The defendanty first argue thet this destruction violated the l4th amendmen due process clause ond the é1h Amendment confrontat mn claure of the United States Constitution, together with Article One, Section 9, of the Pennsylvania Conslitution, in sopport of thelr motion fo dismiss. Brody v. Marylond, 373 U.S. 63, 87 (1963) is ited for the proposition that "the svpprestion by the proseculon of evidence \ fovorable to on accused upon request violates due process where the evidence i material eith te guilt oF to punishment, irrespective of the good faith or bad folth of the prosecution." Commonwealth v. Chapman, 255 Pa. Superior C1. 265, 386 A.2d 994 (1978) holds thet the Brody rule applies equally to destruction of the evidence situations. ‘The leading Pennsylvania case addressing destruction of evidenc |i Commonweolth v. Chapman, supra where, In e rope case, eight items of evidence re destroyed by the police custodion during the terim period between the 4 that these item: had served their defendant's original trial ond retrial, in the bel purpose at the fint trial ond a ret | was not contemplated. The Superior Court held, 8 to seven of the unavailable tems, that the defendant wos not impermi deprived because of the existence of secondary sources such ot test reports recorded observations which oppropriately substituted for the destroyed items. he fighh item, 9 poi of underhorts found ot the scene, wor held to be of @ diferent | character. | A th tne of he dtd ee v0 ly sede land thus wor deprived of the opportunity to demonstrote that the shorts found of the scene were rot his, 04 the simple expadent of trying them on could hove diclod. The cove wos therefore remanded fr an evidentony bering otto whether the destruction of the shorts amounted to @ denial of due process. ~.the instont defendants were afforded © Chapmanctike hearing before “judge Marshall ond their motions dlumissed. Defendants have ottempted to distinguish in Chapman was fgely negligent, wherect the Move destruction was intentional. A corel reading of Chapgan reveals, howeve of evidence is itrelevant in determining the existence of Chapman from the case et bar on the ground that the dest! that the motivating factor underlying the destruction trody violation, viz the good fith or bod faith of the prosecution fs iolevont . . «i t the effect on the righ to fot ral, not the promcutr's sate of mind, that resus fo revenible err." (Quoting Conmonwecth v= Jankins 476 Po. 467, 363 4.28 195 | «78). I Thus, even esuming the bed Feith 2 ree, the ins struction of the residence ond nt Je turns, under Brady, on whether the house ond tree were syateriol™ to the guilt or innocence of the defendants. the term “material” was defined by the United Stotes Supreme Court in Stotes v. Agurs, 427 U.S. 97 (1976): ! The proper sondord of materiality must reflect warding Coneern with the justice of the finding of Sar Roding Ws permissible only if swpported by ‘nce sttoblishing guilt beyond @ feasonable doubt. It } SLESISyllows thot if the omitted evidence creates preeTabie doubr that did not otherwise exist, constitutional Snot hos been committed, This means that the omission must Ee evolucted in the context of the entire record. If there Tico reoionable doubt about guilt whether or not the [Giional evidence. is considered, there, is no justification foro new tials On the other hond,, if the verdict is Giiecey" "of ‘questionable validity, edditional evidence of Suleticely mor importance might be sufficient to create reasonable doubt - ot 112-13 (footnotes omitted). Accord, Commonwealth v. Whaley, __Pas Supers 434 4.28 147)50- ‘Applying the Agurs materiality stondord fo the instant case, this Courts ‘convinced that the house and tree, even if preserved, would not create ¢ aloreasonable doubt a: to the guilt or innecence of these defendants. This conclsion compelled after reviewing the videotapes ond the location of (I) the house; (2) the tree in relation to the hovse; (3) the police officers in relation to the house; ane (4) the loca where Offi Romp was killed and where the seven other police fond firemen were wounded. [At the time of the shootout, all nine defendants were located in the borement of 309 North 33rd Street. Officer Ramp wos killed while stonding next to © 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 I other police and firemen who were wounded were alto stricken on the Pearl Street side of the basement or on the comer of 33rd and Pearl Streets. The defendants cergue thot the tree was material to their defense because @ Commonwealth Officer Robert Hunt, testified he saw approximately four or five shots fired from the 33rd Street basement window strike the tree. N.T. 3/5/79, Mera \ Marsholl ot 36. The defendants orgue that the destruction of the tree prevented them from rebutting Officer Hurst's testimony; T.e., impeaching his credibility. Their is unimpressive. Officer Hurst's imony in this regard pertained merely to events occurring during the first fusillade from the basement ~ not the volleys after the eves fire killed Officer Ramp ond wounded the athars. At best, Hurst's testimony, there fore, related merely to one prior episode in the scenario. Even If successfully ottacled, wch © result could not be deemed os exculpatory. ae1 Hues testified he sow these four or five shot nh he Sn rt ain wr: red, fire boxe wos videotapes reveal that there were four shot Fired fom the basement which pessed treom ond suck the tee, This Court fins thor onder + sscandary evidence 40 enable the defendants se the videotapes were suff vo ten Ofer Hurst's tatinony. See che Commonwestth Whaley, supre ond 1 153, 341 A.24 505, corte devinds 429 U)S- through the firehose's water Commonwealth v. Mace, 234 Po. Supers Ct- 996 ((975). With respect 12 the house, the defends ‘contend that its desruction she shootout constituted @ Brady violation because they were ceptived Te cng vaitoy wi: [er en Of course, evidence is not Commonwealth v= Gt 467 Po. 12, 384 A.2a B75 (1976). Rather, exculpotory ‘evidence 1s thot which iy tends to establish the defendant's innocence of the crime charged, ot extrinsiea is merely collateral or impeaching ted from thot which, although favorobley gifferen I baer wt, 354 A.2 ot 678 8 clio Commonwealth vz Hicks, 270 Fo. Soper ct. be se cnt tot 2% SS on A.24 513 (1979). Moreover, there is ne prenametion thet 1 serial evidence fovorsble to the the hous, had it not Jd have yielded exculpatory oF m= ' detendons. See, Commonweottn v= Whelay, Per Sr cheat) AMAZE at 130. been destroyed, woul Is cloor thet the Move residence wat sot fielded Viewed in this fight, 1 vpoverial tothe guilt or fnnocunes of the defendants ond would not hove nculpatory evidence. Although the defendants orov® that they were deprived of the pendently vesting whether the bullets riginted fOr the besement, opportntty of ink this deprivation does not, standing alone, constitute & ‘Brody, viola Ch. ot 471 9.8, 341 A.24 of 507 9-8 m. S08 Icomenweslih v= Mace, 734 Fox Serer: \ 2tn desuction of the evidence cases, the sppresion Mt must hear testimony fom wit auilble wits and review al oharewstble ress SY te reconsivct ‘he exidence os exixed prior tots dasructon, See Commonwealth v. Chapman 255 fe Sepa Che ot 206, 988 28 ot 004-05. i denonnrated with esarance that the evidenee would have been fovorable ond rateial had it pat been destroyed. $20 1d: ot 267, 386 A.2d ot 1005. This procedure wos obviouly fllowed by Je Manhall who reviewed the videotapes of the entire incident end heord testimony of witnesss present at the sane These secondary wurces, coupled with the fost thot there was no demonstration of of fire from the basement Yo the verout of ond the impossibility of fuenen leads to the conclusion that elt inability to test the oxigin of the bullets did not constitute @ Brady violations » The defendants next argue thot the destruction of the residence prevented them from improcting the crecibility of Commonweal witnesses who (testified that shots were red fom the tesenent into the Fist flaor floor boards where the witnesses were standing, (2) te sed that they abserved some of the efendnts ine bosement with firasrméy ord {@) testified that they 10 @ platfom i the bosement with weopens on Ht Inductive ‘with respect 12 the question of Vaather impeaching evidence 1s material within the meaning of Brody, 1 the United "holding in Giglio v= United Sater, 405 U-S- 150 (1972). States Supreme Cout here the Court sated: en the *etabity of given witness may well a ee iehacencey = nan duclonre ot ae alls within this general rl ‘howe ally require «new rial Hea ore, prosecutors files 20 1 came iby saul 2 the Safes oo ged he wet ie Baty ered under Brody = + = ee ey cute Mifected the judgment ‘ony reasonable: of the jury = = 1g. ot 154 (citations deleted)-In the instont case, the rel ty of the Commonwealth witnesses who testified thot shots were fired from the basement into the first floor floor boords wos not determinative or mater I to she guilt or innocence of the defendants. This bome out, in port, by the fact that the defendants were not charged with ony crines stemmidy fom shots ellegedly fired though the Fiat flor floor Boor, Path the defendants were chorged with murder and attempted murder stemming from shots fired of police officers and firemin who were standing outside the residence on the Pearl Street side of the basement. OF course, if the Commonwealth's zole evidence | \ecotng the ergin of the fatal aumhots hod come from the witness stnding on | te tot Mer, their alibi might ply be material to the defend coe This is not the care, howeve In fact, the Commonwealth presented numerous witnesses standing outside the residence who testified that they also heard gunshots 1d from the basement, Thus, even If this Court disragords the testimony of which the defendants complain, there is overwhelming additional evidence that the deferdonty Tiel 17.43, 26. 1d shots from the basement. N. 32.106, 34.31 27.109-I10, 28.103, 31.77, ‘The defendants next contend that the razing of the houe prevénted them from tes ng the redil ity of police officats who teed tht they sw some of the defendonts in the basement with firearms. The crux of this orgument is that the destruction of the howe prevented defendants from independently testing the lighting ‘conditions in the bosement. This contention without merit since the observations ‘were made by witnesses located only @ few feet from the basement windows in the morning when there was an abundance of aun light. These witenes, in fact, were \ed by defense counsel as 10 the lighting conditions in the basement. “MeThe house deals with the ¢f platform in the respect 10 the destruction of HE \ fedants’ Final ergumet eibiity of police offics fireoras viled thereon ars who testified they ‘Tris argument ray bE oped ond the protege 1e basement ce the patform in question wat Hho sisregarded + vmrauced by the Commanwectih et tal \ i, eute foo | “ee defendant next rave tet Jaan Chri? Mirorehiy J smprovidenthyaraned te Commenesls orion to extend Rul 1100, TE wat | oud bere Jeon Niemi wo, on Sone y 179, ernie’ Commonwealth's even days folowing © aecifon om defendont! Testimony con the motion Judge Mirarcht 5, 079, \ Judge Mirorchl's ae 1th sai ety he ied © weitten applicatl hhe mode on oral oppticat super. Cte Ve Net, 6/4/79, Charles Mirch 356+ between May 31, 1977 fond September 5, 1979+ eyification on December in seven days of cond tri decision. open ended st of the defendant’ oF gument i that by sting O° id vot comply with the Fe (a)ny order gronting #l ve or period within which the Wal shall be commenced" ove woived this ive since they however syont to Rute 11006")- see Commonwealth the gi irements of Judge Mirarcht ty application in port, that provides, J) The defendants, vn eto din ct ee sau ns 8 70 CS son 10, woe eos om \ a, 73 te ion to dismiss) $8. 2180, Commonwealth vs ds, 254 Po. Super Cts ose (1979); Commmonwentth vs Beye AN A2d 45h, 386 4.28 37 (1978)‘Assuming that the iswe is not waived, the defendants! ergument is nevertheless meritless. Judge Mirarchi unquestionably set a period within which the trial wor required to commence -- seven days after cision on the defendant' wotion Jo suppress identification. Inasmuch os the motion to dismiss, before Judge Momball, based on the destvction of the evidence iaue had token over four Sonths simply to pretent the testimony, the salection of @ specific future dote would have been whimsicol at best. Rather, Judge Mirarchi, ontipating nother lengthy motion, which tumed 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 ote} by specifying the “period within which the trial shall be commence IV, WAIVER OF COUNSEL AND RELATED ISSUES Numerous errors hove been aigned by defendants under this subtitle, ronging from the propriety of permitting the defendants to appear pro 32 fo on cllegetion thot there war tomething improper in permitting counsel to proceed with the defense after defendants! ctment from the courtroom and purportedly agoinst defendants! desires. In the First instonce, we shall place these allegations in their foctual setting and, at a k point, the controlling law will be cited to demonstrate the lack of merit in any of these contentions. 11 fs fest averted that the defendants were illegally permitted to sepceent themselves. Faretto (1975) holds that such right is guaranteed to 0 defendant in o state court criminal Cali mio, 422 U.S. 806, 95 S. Ct. 2525 proceeding if such choice is made voluntarily ond intelligently. (See also, Commonwealth v. Africa, 359 A.2d 855 (Pa. 1976); Commonweclth 388 A.2d 324 (Po. 1978) and Pennsylvenia Constitution, Article One, Section 9). a6fo. R. Chim, P38) implements thi rnp by requiring the fede fo escerin onthe record wheter the waiver af counsel is knowing, voluntary ond inllign. NumeroutFenalvonia cies delineate the required eras fo be covered inthe formulation of sch determination. See oho Conmonwanih v. Fowler, 271 Fo. Sope.| Ch. 198, 412 A.24 614 1979, Commer vs Hanan, 265 Pa Soper Ce 125, XO) A.24 657 (17%; Commonwanthv. Charla, Pas Supers Cho 129 4.24 659 900), Commonwealth v: Wein, Po. Super. Cte, AD AWD | 1020 (78), 1 etree tothe Wal record wil demons the matiolo cology conducied in ths core, which included numerous wamins ond edmonton: which trocended these euentos. Not only were the defendants queried, bt the sandy ‘ilarly interrogated. The severtty of the charges ond all attendant circumstonces were thoroughly described to defendants and the Court went 20 for or to ettempt to dissuade the defendants from proceeding pro se- Apporently, the thrust of this ossignment is not that enything in the colloquy wos omitted or wos 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 opply appears te be whether a defendant “knows what he Ts doing ond his cl + made with eyes open." (Foretia, pra.) In Farsi, the Cour further noted thot the defendont was Miterte ond understanding ond wes Noluntrily exercising en informed fee wil.” Thi Court concluded thot the ingont defendants met both tests. Ax the published reports of the courts of this Common eealth will eeveol, the members of the Move group have traditionally demanded ‘ond been granted the tight of self representation. 7-Pardoxically, the defendants’ next argument (ofter conplaining thet the Court erred in granting this right) was to the effect that error oczurred in tenminating the ight of self representation after ejectment from the courtrorm os 2 result of their} misbehavior. In this connect mn, attention Is directed fo the fact that this precise | roubitty wor menvioned by the Cout whan th ground role er the el wer described, ot its inception. Additionally, the defendonts were rot sched until they had repeatedly behaved in © manner their ouster. This trial began in December of 1979 ond the right of self representation was not terminated until January 23, 1980. The sequence of events, and the court's forebearonce ur ouster become inevitable,moy be oxcertoined from the record. The propriety of the defendants! ictment from the courtroom is next challenged, topether with the axertion that thelr constitutional rights of confrontation were abridged. Again, @ mere cursory review of the trial record will omply demonstrate the Court's total justification in this regard. It would appeor that little purpose would be serv | bebo by attempts to describe the numerous episodes of outrageous perpetroted by the defendants and their followers in the eudience upon this Coun ond the Conmonweclth, ond it is to be devoutly hoped that on American court will never opoin be exposed to such abuses. Quoting from the record could be only with these indicate thot the Court indulged auch cutbrecks on numerous of interest to students of the obscene, profane and scotological. Fac fttacks, the record wi ‘occasions until the demonds of judicial decorum and dignity required defendants’ ouster. Justice Roberts in Commonwealth supra, (citing All 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2nd 353 (1970), enumerated the options eveileble to 0 court faced with awaults of this nature. It is te be noted that alll procedures suggested by Allen and Aftica were carefully followed, incl aleeof the least onerous option. Any thought of seles contempt cito this homicide cose, would have been absurd. (See Allen.) Following defendant’ ejectment from the courtroom ond termination fof their pro se slotus, extreme care was faken to permit the defendants to retum fo the courtroom albeit not as their own counsel. Initially, the defendants \ were Brought fo the courtroom on @ daily basis for both the moming and afternoon session, ond offered the privilege of regaining the courtroom if they would promise to behave, In view of the foct that js procedure consumed for too much time (bearing in mind that there were nine defendants and sach was required fo be brought from the seventh floor cellroom to the courtroom, with resultant battles ‘erupting between defendants ed depuly she to merely bring them to the courtroom at the opening of each doy's cedure wos vehemently oppored by defendants ond they requested thot they not ree Pre y be brought to City Hall from the prison and asked thet they be permitted to remai ft the detent facility — which request wos granted. That all of the defendents* rights to regain the courtroom were sbierved will be furher indicated by o later irected to each defendant from the judge, © copy of which is attached end, which outlines the sfeguords inatitted by the Court to enable re-entiance to the courtoom ct ony time upon @ promise to behave. At no time did fendants utter ony such promise, but rather, after expulsion from the courtroem ond tari tion of their representation, they contented themselves wi unacceptable evastons. The nedt assignment of erro is charged in the following situation: [pro 40 Fights having been terminated, -19- tondby counsel werein es fo their appropriate roles ond representatic + were made by counsel fect thot they hed been instructed by defendants to refrain from ony ctivities on behalf of the defendants. At this point, @ Petition for © Writ of Pro- hibition wos Filed by defense counsel in the Supreme Court of Pennsylvania (1960 §.0. Misel. Docket No. 82) accompani by @ proyer thot the Cour assume plenory jurisdiction fr the purpore of fnstructing counsel os to their future portcipa~ tion, The Petition for the Writ of Prohibition, based on the ollegetion that the éefendonts had been improperly excluded fom the courtroom, war denied by the | Court ond the Supreme Court orpeorance was confined solely 10 the request for instretions. We were informed by the petitioning sttomeys that the Supreme Court, int instructions to remain in no uncertain terms, ordered them to ignore any cl inoctive, and counsel were directed to participate in the trial with the objective of ‘ochieving @ just and fair verdict, including the cross examination of witnesses, the making of pertinent objections and presentation of lable defense material. We, | of course, complied with the Supreme Court's mondate and cannot comprehend that error wos committed in s0 doing. H Abihough not eaquited by authority, save for some reference in the 19 opinion of Justice Brennon in Allen v. Hlinois, wera, and o pious aside in the ABA Standards, this Court explored the pouibility of defendants keeping in jorovs efforts in thot touch with the trial through some technological means, Our Girection resulted in the conclusion that sch e posibility war neither fesible nor eveilable. {A disillotion of Foret v. Colifomia, 422 U.S. 04, 95 S. Ct. 2525 (0975); Allen y. Illinois, 397 U.S. 397, 90 S. Ct. 1057 (1970), ond Commonwealth A 1353 A.24 855 (Po. 1976), reveals the following principles: (I) The right of @ defendant to self representation may be terminated where the defendont -20-deliberately engages in serious ond obstreperous misconduct; (2): Despite obj by defendont, stondby counsel may be appointed ond made available if the right of self representation is termi 1d; (3) The right of self representation is not @ license to abuse the dignity of the courtroom nor is © license not to comply with rules ofiprocedure or substontive law; (4) Where the right of self representation is ‘granted, the defendant will not be heard to complain of the ineffective a stone of coursel; (5) An eccuted's technical legal knowledge, as wich, is not relevant ta on exesmant of « knowing ©» cise of the tight of self representation; (6) [A defendant may lose his constitutional right to be present throughout his trial, ond, thus, eee ee ee eee arene wat, his ea os cues wr) Nr, auptive ond campo vehevir wou ef uch on enone end eopmvaed tue otf ey ther veel tthe costars ov He wish pineal rst (peo fe his remo trod bean reenely womed by the Court thet he wuld bernard fom te cso he peed tay candi (c) athe wo Eno ll ded sy te at fle we of ein content power (2) hab won enon swoerd that he eid ate toe tal he wuld ogee Ye codec mm tren overly maou (71 the dated ht be prt terminated becouse of his irespectful conduct, such right moy be regained as s000 fs the accused is willing to conduct imself consistontly with the decorum ond respect inherent in the conduct of judicial proceedings (8) There are at least three consituionally-permissble woys for @ tel judge to handle on obstreperous defendant vhose disrespectful conduct hos mode it impossible to cary on his criminal | trial: (a) cand gag him (b) cite him for contempt (c) remove him from the courtroom until he promises to behave, Although binding and gagging i looked upon] 15 not be with disfovor, such procedure is permissible. The contempt option n -2-i from employed where it is obviously ineffective or would permit defendant to pr his own wrong. (9) At the beginning of © trial, the court should delineate ground rules to be followed by defendants and counsel and warnings should be isved o+ te the lengths o Applying the cbove subtitle \the lock of merit thereof is apparent. V. WAIVER OF JURY TRIAL AND RELATED ISSUES ‘joditionally, members of the Move organization have not only exked for the right of self representation, but have allo demanded thot they be peritted to waive © jury Accordingly, « jury woiver colloquy wos conducted immediotely following the colloquy on the request for self representation. All nine defendants cond theie counsel were present together but queried individually on thi Sondra Devis hod demanded a jury trial, ond her case was accordingly severed. It is noteworthy that defendants do not challenge the sufficiency of the colloquy, but rather it is now olleged that this Court lacked jurisdiction to ry the cose without o jury since the defendants refused to sign @ waiv P. nol. form in accordance with Po.R. Crim. No challenge is advanced that this jury waiver wos not made knowingly, intelligently ond voluntarily, but reliance is placed solely upon the omision of d sadants! signature to the fors. The record is storkly clear that each defendant was fully ewore of the contents of the form and the only reason for refusal to sign fated by their religious Leliefs, Faced with this issue, this Court unhesitatingly reached the Droconion decision that the literal requirement of the rule must give way to respect for defendants! religious beliefs. In this regard, the Constitution of Penny! le One, Section 3, states: “All men hove o naturol ond indefeasi -n-1 to worship Almighty God according to the dictates of their own consciences; 1 «no human authority can, in any ease whatsoever, control or interfere with the rights of comcience . . . ." Certainly, Commonwealth of Pennsylvania ith its provd hinory of rel fous tolerance, should be the lost jriiction to ignore caligigus inhibitions. ‘A teading of the record Indicates the steodfast ond aggreuive demand cof the defendants that they be tried without © jury. In our oF 1 this auignment of error could readily be decided adversely to defendants with the mere observation thot they hod waived or were astopped from asserting any pasition controry to their criginal demands, Hed they be le that such denied @ waiver, it is es would be onigned os evr if the jury had convicted, The requirement of « defendon's signature in the Rule wos designed as a shield for @ defendont whose colloquy wos somehow insufficient. The Rule was naver mandated, in our opinion, 101 © sword for vie fer luring the Court into acceptonce of the waiver. ‘The purpose of Rule 1101 woiver. Certainly, the mere signing of the form adds nothing Yo the colloguy. the mere signing wos controlling, the necesity for the colloquy would disappeor. ‘To elevote the signature requirement to the eminence ascribed by the defense would be to ignore substance ond enalt form. In Secretay v. Joh Vending Corp. 453 Pa, 488, 494, 307 A.24 358, 362 (1973), our Supreme Court hos soted: sin erder to ovoid on obsurd ond harsh result, @ court may look beyond the strict letier of the law to interpret @ statute according to Its reason end sprit end feccomplish the object intended by the Legislature." If a statute may be so int preted, 0 Rule of Court lends itself to similar interpretation. aDefendants’ sole reliance appears to be the Icocter, 229 Po. Super. Ct. 71, 324 A.2d S12 (1974) Rev'd, 463 Pa. 310, 248 A.28 | 5s (175) 10 the effect that the requirements of Rule 1101 ore mandatory and in the obsence of o signed waiver the Court is “without j siction to try the cove.” I cotter is herdly contoing in view of the fact that was reveriad on oppeal to the Sopredie Court on the ground that the failure to rose this particular ergument du | rou-verict motions waived oppellte review of ths allged err. The Supreme Cov isposition of this case would, thu eppear to be in disagreement with the Superior Court's characterization of the matter as © “jurisdictional issue." Jurisdictional inves |jnoy rot be woived. (See Commonweclth v. Mangum, 231 Ps A.2d 487 (1974).) Super. Ct. 162, 392 The remaining assignment of error under this subtitle charges that the Court srred in denying backup counsels! motion on the 22nd day of the trial to withdraw the defendants! jury waiver ond proceed to empanel o jury purnwont to Pa.R.Crim. P. 1102. This role provides in pe nt pa trial judge on his own motion may order the + + at any time prior to verdict the thdrowal of such (jury) waiver or permit the defendant, upon motion, 10 withdraw his waiver." In terms, this rule reserves seh decision to the court's discretion, which was here ed odversely to defendonts, In Commonwealth v. Kennedy, 271 Pa. Super. Ct. 1, 411 A.2d 1249 (1979), it was held that once trial has commenced @ wiiver may be withdrawn prior to verdict only where the some reason to justify such @ request. The sole iuutificotion here advanced wos 10 the effect that the outrageous conduct of defenden!s | somehow made it impossible for the Court to act with the required impor | We respond emphatically thet, if this Court falt its commitment to impartiality hod been impinged to any degree, we would have recused ourselves without request. We were well aware of and subscribed wholly to the principle that recusl is rmondatory if there is any doubt in this area.Defendants bore the burden of producing evidence establishing the Cout's bias or prejudice ogainat them. (See Commonwealth v. Council, 491 Pa. 14, 421 A.2d 623 (1980) ond Commonwealth v. Perry, 468 Pa, 515, 364 A.2d 312 (1976).) Nothing has been suggested on this issue other thon the bootstrap cuertion Yhat defendants’ conduct inherently poisoned the Cout as a foct Finder. ie refuse to subscribe to any concept that a defendant may, at his pleasure, with= dow 0 valid woiver ond insist upon a jurysmidtrial, by the simple expedient of repeated contumactous behos Mi. EVIDENCE OF PRIOR CRIMINAL CONDUCT The defendants orgue thot this Court erred in allowing the Commonwealth I conduct occurring Moy 20 and te inrodvce evidence ofthe defendant! roe Tine 4, 1977. A bie chovoogy of the evens on these wo days newer |r the proper andentontng of ti ae. | (On Ney 20, 1977, veious menbers of the Nowe exgnization,ineusing 4 five of the een ae ‘observed brondishing firearms on a platform outside of Aci the Move residence. Inspector George Fencl, Chief Inspector of the Civil 4 ince and spoke with defendont Delbert |] Unit, on this date telephoned the Move re Cor. On waned Inspector Fenel that any otempl to eject the Move manbers om jl the vesidence would be resisted with orms and explosives. Threats of © similar nature were made by vorios defendonts during the count of the confntetion. Ax o result of this incident, orrest waren were ised on Mey 24, 1977, forthe following efendans; Delbert Ort, Merle Astin, Jonet Holloway, Edward Goodman ond Phillip: Africa. On June 4, 1977, the police ottenped fo serve the erest warns on the five named defendants. Police whe srrved ot the scene cburved seven of the 7 CO) efendonts on the platform in frunt of the house. Some of the defendants were 25sett carving clubs ond threatened 0 kill police officers who attempted fo eicend, 6) te platform. As a result of these threats, the arrest warrants were not served. the Commonweclih, In its offer of proof, argued thet the events of hoy 20 and June A were relevant 10 show the states of mind, motive ond intent af thedefendants with respect to the murder, attempted murder 1 epgravated owoult inal conspiracy charges arising out of the August 8, 1978 shootout. The snce of the other erimes is Jelendants, on the other hand, orgued: (1) that e% srodnissible to prove that @ defendant committed the crime for which he is presently ‘on wil; (2) that the May 20 and June 4, 1977 incidents were too remote in time vo be of any relevance to the crimes accurring on August 8, 1978; end (3) thot since ail of the defendants were not present on each of these two dates, it was impossible for this Court to limit the adnis:ibility of the prior crimes to the individual defendonts who committed them. i fs well settled thet evi nce of o defendant's prior ctiminal activity inadmissible if offered merely 0 show the defendant's propensity to commit the cine for which he is on tial, See, 2.92, Commonwealth v. Stanley, 484 Po. 2, 196 A.24 631 (1979). Equolly well settled, however, are the exceptions to this ener re Prior convictions (end criminal ects) con be admitted in evidence to show intent, selenter, motive, identity, plon, oF the accused to be one of on organization bonded together to TSronit crimes of the sort chorged, or that such prior conviction eeeriminolaet formed @ part of a. chain, or was one of o Stquence ef acts or become part of the History of the event Sr'tiol, or wot port of the natural development of the facts commonwealth v. Ross, AI3 Pa. 35, 40, 195 A.2d 81, 63 (1963) (emphasis deleted). Commonwealth ve Styles, fe. _ AB}A.24 978 (1981). See eli, Commen ‘wealth v. Brown, 487 Po. 285, 4I4 A.24/(1980); Commonwealth v. Temy, 462 Pa. threats 595, 342 A.24 92 (1979), Numerous cases hold that evidence of p -26-mode by @ defendant egoinst the victim are odmisible in a homicide prosecution to prove ill, malice ond sotive, See Conmonwanthv. Uti, 472 Pox 53, 371 A.24 186 (1977). See also Commonwealth v. Glas, 406 Pa, 334, 405 A. 1236 (1979); Conmonwenlth v. Bedatke, ASP Po, 653, 331 A.2d 181 (1975), Commaweah v. Glover, M6 Pr 492, 204 A-2d 4 (1972) Commonwesth Faison, 497 Fe. 432, 264 A.24 394 (1970). In the instant cose, the defendonts' threats and show of force on Moy 20 fond June 4 were clearly admissitle to show their motive, mali se end intent to commit murder, attempted murd 1 and eggravated assault on August 8, 1978. The Common- ‘wealth established thot the shooting death of Jomes Ramp and the wounding of the other pol se ond firemen was mo! ed, in part, by the defendant! desire to resist theie eviction from the Move residence. Moreover, the idence wos admisible to festoblish thet the defendonts intended to carry out their threat of shot ony police officer who entered the premises. Finally, the prior threats were relevant to show m Fo. 53, 371 A.2d 186 (1977). im short, thit Court finds @ logical ond direct connec the molice necessary to sustain © murder conviction. Commonwealth v. Ulatosi tion between tl vents of May 20 end June 4, 1977, fond the shootout of August 1978. See Commonwealth v. Stanley, 484 Fa. 2, 398 A.24 631 (1979). The defendnis, nevertheless, orgue that their threats were inadmissible because they were not directed at any particular person. This contention is without ince evidence of prior criminal conduct it not rendered inadmissible merely becouse the threats or inal conduct were directed at someone other thon the 1e for which the defendant is charged. Set victim of the particular er Commonwealth v. Bederko, 457 Po. 653, 331 A.2d 161 (1975) (threats ogainst wife properly introduced in prosecution of wife's poramourh; Commonwealth v. Glover, 144s Po. 492, 286 8.24 349 (1972) (threats or onault ageinst © woman's male fiend (held ode le in defendant's prosacution for murder of a li rent male jend found in the women's apartment); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 27ne Jow held odmissible to prove ‘70 (reat opsinst ond rope of victim's sister deirdon's wolice toward vietim). See size Commonwealth v. Salvardi, 158 Po S01, 27 4.993 (1893) (in @ murder prosecution for murder of @ police officer, the sdnisibility af threats the defendont had made ogoinst the police in general filteen ar wenteen wonths prior © the killing). The defendonts next ergue that the May 20 ond June 4 incidents wore secause they wore too remote in time to the August 8, 1978 shootout. jrval between the August 8, 1978 shootout ina though there wos © fifteen-month i and the Fiat of the prior two incidents, the length of the time intervening between the prior erininal conduct and the crime charged goes to the weight, rather than to the odmisiblity, of the prior criminal conduct. Commonwealth v. Ulatowskt, 472 Po. 53, 371 A.24 186 (1977) (events occurring nine to seventeen monthe prior to the murder of defendant's wife admissible to prove ill-will, motive and malice); Commonwealth v. Chism, 480 Po. 233, 389 A.2d 1041 (1978) (defendant's threats ible 10 show ill-will ond against vietim seven months before the murder held od rotive); Commonwealth v. Gloss, 486 Pa. 334, 405 A.2d 1236 (1979) (threats within fe ten-manth period held admissible). both of ial, the dafendants who ware not prt cite May 20 end June 4 ay \irgue that it was impossible for this Court, in determining their guilt, 1 disregard the prior criminal conduct of the other defendants. In possing on this corgument, it must be remenbered thot the defendants were tried before this Court without @ jury. The Supreme Court has stated that “A judge, ax fact finder, is ible evidence and consider only competent evidence." Commonwealth v. Davis, 491 Pa. 963, 372 n. 6, 421 A.24 179, 183 n.6 (1980). Moreover, evidence competent against one defendant is not rendered inadmissible rarely becouse it refers to or implicates other defendants so long os the avidence Is is admitted, See Commonwealth considered only a¢ to the defendant against whom -28-denbaugh, __ Po. Super. Ct. __, 422 A.24 1126 (1980). This Court hor bolonced the need for this testimony ogains! its possible prejud 1 concludes thot its relevoncy outweighs any pre[udicial impact it may have on the defendonts, ee Commonwwolth v. Barhort, __ Pas Super. Ct. _ 494 A.24 191 (1961). We hold\that the events of May 20 and June 4, 1977, were odmisible to prove defondants' motive, intent, ill-will ond malice with respect to the murder of Jomes fomp ond the wounding of the others on August 8, 1978. ‘The May 20 end June 4, 1977 Incidents were similorly relevant with | expect to the eriminal conspiracy bills. The evidence pertaining to these Wwo epitodes tended to prove on on-going conspiracy culminating in the August 8, 1978 shootout, together with the intention ond motivation of the defendants to enter into © criminal conspiracy contemplating the crimes of murder, ottempted murder and eagrovated oxcult on August 8, 1978. Defendants hove protested that the events of th wo days were inedmisible as evidence of @ criminal conspiracy since the information charging the defendonts did not embroce the occurrences on these two doys- Under Pennsylvania law, iminol conspiracy is @ substontive offense. Ie Pa. C.S.A. Section 903. This statute provides, in port: to, aafinton of consiacy enon ell of conspiracl with smother pation er persons to. commit @ crime Femee tae intent of promoting of fecilitating tt commission, he: ()_egrees with such oth that they of one or more of the Conduct which constitutes such tion te commit auch crime; oF fe) Overt act. ~ No person may be convicted of conipirocy to commit © cfime unless on overt act in pursvance Sf'ateh consprocy Is elleged and proved to have been done by him or by © person with shom he conspired. 10 Po. C.S.A, Section 903 (a) and (e).'A reading of Section 903 reveals that the esvence of a criminal conspira is the shared ei inal inet between the defendant and other perions to commit an anlowful oct. See Commonwealth v. Tate, 485 Pa. 190, 40! A.24 353 (1979). ‘As previously discussed above, it it well settled that the prior threats ond criminal ge of dafendont ore admin 1 saw what his or her iteton and motto Were ot the time he committed the alleged crtme. Although the wast majority of these decisions have been rendered in the context of @ murder promcution, © mumber of courts have, in the content of @ conspiracy prosecution, admitted the criminal acts of the defendant for the purpore of establishing defendant's motivation, plan and the defendant's relationship with the alleged co-conspirators. Commonwealth v. Gwalmey, __ Po ___ M2. 24 236 (1982); Commonweolth v. Brown, 262 Pa. Super. Ct. 9, 396 A.2d 457 (1978) (prior plans and discussions held admissible to prove whet 1 the defendant conspired to commit the crime for which he wor charged); Commonwealth v. Hradesky, 170 Pa. Super. Ch. 24, 84 A.2d 399 (1951) (in prosecution for attempted extortion, attempted bribery, conspiracy to commit extortion and ibery, evidence of alleged prior cttempts to extort money were adnisible to show defendants’ intent, motive, | plon, design ond scheme to ue his office to extort money }; Commonwelth vs Born | hart, __ Pa. Super. Ct. _, 434 A.24 191 (1961) (evidence of crimes commited prior to offense charged ts adminible to explain the relationship between all co-conspirators). See alse Williamson = 425 (1907) {prior acts admissible in conspi cy prosection to show intent, design, purpote or tnowledge): United Siotes vz Adderly, 529 F.24 1178 (Sth Cir. 1976) (offense of conspiracy requires an element of intent or malice sufficient to allow on exception to the general rule excluding prior acts of misconduct); United Stotes v. Caldarez20, 444 F.2d 1045 (7th Cire denied, 404 U.S. 958 (prior acts admis -30- iblesn conspiracy prosecution to show motive); Keolish v. United Sete 340 F.2d 513 {a Cir. 1965), cent. denied, 381 U.S. 951 (eror sets odnisble in ‘conspiracy prosecution 10 show lent, knowledge, or absance of mistake); 2 Wigmore, Evidenser section 307 (Chadbourne Rav. 1979}; 16 Am. Jure 2d Seetion 48 Indeed, it would eppear thot such evidence Is required for more In \ 4 ctiminal conpracy protecution, since @ consplocy can rarely be proved by rect evidence. Our courts have uniformly recognized that © conspiracy is usally proved ciccomotilly. See, gz, Commonweal». Helnsty 482 Pa. 97, 393 A * 297 (1978); Comnarmecith_v. Rous, 48S Pa. 482, 350 A.24 667 (1976); Commonweal Walters, 453 Pa. 445, 245 A.2d 619 (1975). In Commonwealth vn Deloss, ol fo, 395, 165 A.2d 14 (1960), gest, denied, 965 U.S. 622, the court stated: # . « Gonsideration, should be given fo the, background «of the enangements mode by defendonts ond their methods of of the cerenesrre a criminal scheme has numerous gctors od ‘often made out by ‘the reasonable inferences Trai the ction: of the conspirators will be suf Ty prove that @ conspiracy exists!" 1a of 407, 164 A.24 ot 21 (quoting, Conmonvesth 6 Musser Forests, Incr 394 A.2d 205, (46 A.2d 744 (1958)- Bored on these ov thor 1 this Court is convinced that the defendonis! criminal conduct occurring on May 20 ond June 4, 1977 wos odmistible os cicumsantal ond direct evidence of the relatonihip between the defendonts ond thetr intent end motivation to ente Jnal conspiracy te commit murder ond other crimes on August 8, 1978. oseVil. ADDITIONAL ASSIGNMENTS AS TO THE SUFFICIENCY OF THE EVIDENCE ‘The defendants have challenged the sufficiency of the evidence os it spe sah tant, ay wom Pe rrr pnt led on ee fen ec renee rb ncn w het tht #97. The ve at tn a bene malo she eu Neh San ea shed tn soon on vd open. Mami oma cnc pate viacap sm tne oa Tens toc ot he as nl ate on ty carrie baer nbn ih dn sr atm iis oe Or wr sd bin hr it it east hove Home a mig nt dod He Sai Te ote sn mun vn enn i! Dh Ml le in his hond while ensconced in that basement. Prior to the shootout, efendant Delbert Orr was heard to say, “You've been waiting to come in all this me, but before you do, you better call home and make sure your insurance is poid up." NT. Triol 24.8. Defendant Charles Sins sated, “You smart guys don‘ score vs. A lot of your wives will be wearing black tonight." N.T. Trial 24.145, All fewale fendor ts were present in the howe ond joined the men in the borement, At the onset of the police efforts to reduce the defendonts to custody, oll defendants were offorded numerous opportunities fo vacate the premises “without harm. None of the women complied end all joined their mate countarpurt where the arms ond ammunition were stored. All of the women were involved fone or both of the Moy 20 end June 4, 1977 incidents and joined in the uttering o 2threats ond the brandishing of weapons. It should not be overlocked thot the defendants, during the va 1 colloquies and throughout the trial, frequently proclaimed thet they were 0 “family” ond acted nity. Theie edditional facts, accompanied by the other evidence previously dexcibed, fully convinced the foct Finder of defendants’ guilt for the crimes of murder in the third degree, attempted murder, oggravated orsoult and the substantive of criminal conspiracy. Although this Court found defendants ‘uilly of the crimes of eggravated axsault, sentence was not imposed thereon os 1 was our belief that these crimes merged with the convictions for attempted murde In the consideration of the sufficiency of the idence, the test to be applied has been well established by numerous cases: In determining whether the evidence presented is sufficient fo sustein the conviction, the test is whether, ‘czepting os true all of the idence of the Commonwealth and all of the reosonable inferences arising therefrom, upon which, if believed, 0 foct finder ements would properly hove based its verdict, It is sufficient in low to prove the cof the crime in question beyond @ reasonable doubt." Commenweclth v. Bradley, 1461 Pa. 223, 392 A.2d 688 (1978), cert. denied, 0 U.S. 928. . In our view, the de’endants were properly convicted under both the co-conspirator” theory and oft the .ecomplice” theory. Both theories will be treated herein, bear mind thot the present validity of the co-conspirotor situation in Penneylvania low i some doubt. It is unnecessary thot we ottempt resolve this doubt os we are convinced of guilt under either theory. ‘Analyzing this cose under the co-conspirator authorities, we note thot, xy is established, Lach defendant becomes equolly liable for the ectaf the defendants committed in furherance of the common design. (Commonwealth sn Roun, 465 Po, 482, 380 A.24 867 (1976).) Ax wor sted in Commonwealth ve Cox, 486 Po. 582, 353 A.24 BM (1976), "All theories that ore recognized wnder tur law to hold one responsible for the criminal acts of another require the existence inal intent. It is well settled thot the nexus which renders oll 1 conspircey responsible for the octs of any of its members is the unlawful ogreement." In proving the exis ince of @ conspiracy, it is not necessary for the Commonwealth to extoblish the exitence of en unlawiul agreement by direct proof. Commonwectth v. Rout, supra; Commonwealth v. Walters, 463 Po. 485, 245 A.2d 413 (1975). While more then mere extociation must be shown, " ‘@ conspiracy may be inferentiolly established by showing the relation, conduct or elrcumstances of the ports, and the overt acts of co-conspirators have uniformly been held competent to prove that @ comupt federotion ho in fact, been formed’ ves Holmes, 482 Po. 97, 105, 393 A.24 997, 401 (1978) (quoting Commonwealth v- Consmonwectth, roux, 465 Po. at 488, 950 A.2d at 870). As on evidentiory matter, under the co-conspirator exception to the hearsay rule, the statements of one co-conspirator made during the courte of the conspiracy are odmi conspirators. See Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). ‘Applying these principles, i is apporent thot ll defendants were properly found gully of the crimes charmed. 1 is equolly obvious that all defendants were properly convicted under the seceomplice theory" of *Libilty fr the Conduct of Another" 2 set forth in the presnt Crimes Code:"306(C) Accomplice defined. A person is on eccomplice of another person in the commission of an offense (1) wit the intent of promoting or facilitating the commission of the offense, he: (3) solicits such other person \ 19 commit it; or i) lds of agrees or attempts to oid such other person in planning or committing 2) bs conduct i expres daclard low o esis complies” sera bY Ald dante, under the ree focts, were larly lable os ' cccomplices under the precise wording of this statute. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981); Commonwealth v. Jefferson, 271 Pa. Super. Ct. 199, 412 A.2d 882 (1979); Commonwealth v. Wilson, 493 Pa. 332, 426 A.2d 575,(1981). The ightest degree" of cooperation is sufficient for conviction under the ice doctrine. (Commonwealth Coccioletti, supra.) In order to sustcin a conviction of third degree murder, the Commonwealth ‘must prove that the killing was done with malice. Commonwealth v. Boyd, 461 Pa. 17, 334 A.24 610 (1975). Malice will be found if the defendant committed the Killing With the intent fo kil or with the intent to inflict serious bodily harm or If the 4 sndont consciously disregarded on unjust ed ond extremely high ik tht his octions night couse serious bodily harm. See Commonwecith v. Mare, 486 Pa. 123, 404 1.24 368 (1979). Of course, malice may be inferred from the attending circumstances serrounding the act resulting in death. See Commonwealth v. Bridges, 475 Po. 535, 381 A.24125 1977).‘One such attending circumstance from which malice moy be infered i proof that the del rndant vied @ deadly weapon on @ vital part of the victim's body. |, In the insont cose, the Commonweslih estoblished that Officer Ramp war killed ‘ond Officers Henson ond Krovse were injured by bullets fired from a .223 caliber Mi es M tnd inthe buerant of 30? North 38d Set. See NT. Tl sept 23. hoover, alice nay be infred fom the tats te defendant mse prior the il wn. Commonwealth v. Ulatoskl, 472 Po. 53, 371 A.26 186 Defendants place great reliance upon the admitted inability of the Commonwealth to prove the precise identity of the defendant or defendants whe fired the fotol shots. Suffice it to say that the Commonwealth is not required to prove wch fact. Under either the conspiracy or accomplice theory, 1 i irelevant for the purpose of determining criminal Hability to prove which of the conspirotors cor cecomplices attoined this highest guilt. Commonwealth v. Cecetoletti, 473 Fo. 103, 425 A.24 367 (1981); Commonwealth v= Sroey, AB! Pa. 223, 392 A.24 688 (1978), Commonwealth v. Wilton, 493 Pa. 332, 426 A.2d $75 (1981) ond Commonwealth v. Jefferson, 271 Pa. Super. Ct. 19%, 412 A.2d 882 (1979). Defendonts' post tril motions for © new trial and/or i correst of judgment denied BY THE COURT:FOOTNOTES Philede Glowsey, No. 122, Mise!, Docket No. 21 Cit vray eared Ce 7a gered oe ed in fuil at N.T. 12/7/78, This Court is convinced that the house ond tree were not Teuhoyed by the police in bad faith. As previously seerrened, the house was destroyed for sound reasons. Moreover, the good faith of the Commonwealth is Mat io by the fact that the defendants were given artes eee vigually all evidence, including videotapes SFRE thootout, photographs ond sketches of the interior Sha exterior of the residence and other items or ercalth's posession, See Commonwealth v. Macey Serre Super. Ci, 463, SAT A-2d 905, cert. denled, 423, U.S. 996 (1975). a This conclusion it underscored by the fact that no self-defense sr ingatity clan, was uae © defendants ot tril. oi Etiee presented no evidence ot triol that they, did ee te the thats or that they ‘could not have struck Folice officers even if they had fired the weapons. 55.97. Defendant Wi + eee 7in the basement pushing & Ruger Mini 14 sifle back ond Foun between them ond arguing over who should Kill the "SO police Officer Jehn Monaghan. NT. Teal Be 36.21. Edward Goodmen was seen in the basement Mie vifle in his hand. Net. 31-73-31.74. Michael Covis WEP Jutived holding © rifle in ‘his hand.” N.T. Trial 26.18. Delbert Orr: See NT. Trial 49.57-49.58, Commonwealth Bhhibits (Photographs) C-125, 126, 127, 129, 190, 131, 13%, M40, VAl, 142, 144. Edword Goodman: See N.T. Trial 49.59, Commonwealth Eatibits (phot spropha) C190, 132, 195, 134, 199, 40\ 6. (Pp. 25) 7. (Pa 25) &. (Pa. 26) 9. (Pa 26) 10. (Fa. 27) U. (Po. 28) erie Austin: See NoT. Teal 47.54; Conmorweslh Exhibits Pepe graphs) C5125, 126, 127, 138, 199, HO See NT, Thiel 49,61; Commonwealth pay C126, M0, 43, 44 itliom Pillip: See NT, 49.4, Commonwealth Exhibits Whatogrepha) 2197, 141, 142, 4S, 4 he five vemed defendants were charged with 1, following The Five nome iy conduct, eroratic threats; obng cries iorgiigering enother penn cfiming! Soy racklony_endorpece, Defendant Charles Sine woe her and ore ound 323 pam on May 20 end chorand ‘with wooper irate ge ewe mH" resent on June 4, wer NT, Triel 49.160; Commonwealth Ex in, iz, oes NT. Trial 48.184; Commenwestth ie (photographs) C=! or Carmanwealth Exhibit (ehotogoPh) Cal ettonoy: se. Nats Tit Ab-104; Commonweslh telphoreapts) C-il9, 12L photo GF Trial 46.189; Commanwenth avers Garotoaropha) cil, 120 Withoet ovis ge, NTs eh 8156 Commonwealth Exhibit (phetee' se. IAP riot 46.148 Dalbert Or; Janet Holloway ond Micheal Dovis ‘Asc rewlt ofthis incident, the following defeneens oor, convicted} Ae 9 roslt of tact, tora threats ond ems, iro of ord oe eif Due, 78 Na. 1558) Oe Bye" ie TOA 04 ‘hichael Davis (C. 951) {ole in on assault prosecution. See Prior thvecttn v. tbinson, 408 Poa. 575, ‘364 8.26 665 (1976) The flloing defendants were not proved 1.65 BSD, cot the, The fob indents Jeanene Phillipe, Michoe! ore Debbie Sims May 20 tig dafendans were not proved 10 ret the 8 deFeefGrles Sime ond Merle Aust‘March 20, 1980 TO: ALLMOVE DEFENDANTS Wn Monday, March 17, 1980, you again stated that you did not want to be brought fo the City Hell cell room from the prison for the daily trial sessions, ond that you would resist with force ony attempt fo compel such procedure. ‘You demanded, in ect, thot this procedure be discontinued. Accordingly, and as you hove been told, all thine defendon's will be permitted to, remain at the prison during trial sessions ond oll nine shall be permitted lo guiher ino conference room at Holmesburg Prison which hos been set aside for this purpose. No guords will be in the conference room with you during aves periods, Ihdivecktcleghone line hos been installed in the conference room end connected with the couttrcon and the court chambers in order that you may telephone the court and indicote your dene lo re-enter the courtroom upon giving your promise to. behave ond ebey the Bidets of the courl. In-addition, you may call the court at any tit 19 teal sessions, Sinether you ore in the conference room or net, upon notifying the duty officer of such Saline, In the event you notify the court os described, the trial will be interrupted ond jou will be brought to the courtroom fo present on opportunity te regnin entry in the customary Toshion previously followe In the event you do not use the direct line, the telephone number in the cour room and the court chambers are MU 6~4304 and MU 64907. d ‘The obove arrangements are subject fo change at such time os the prosecution hos rested ond the stage of trial is reached for the defendants to present o defense. BY THE COUR Ashu Walmed, J