Commonwealth v. Holbrook

*396KELLY, Judge,

concurring and dissenting.

In my opinion, appellant committed no more than second degree murder. Hence, I dissent.1

The trial court summarized the evidence which it found credible. • According to the trial court, appellant and cohorts planned to rob Elsie Olmeda, knowing that she would be home alone with her three children. Appellant and the others forced their way into the small house. The others dragged the victim upstairs, and bound her with a telephone wire. Meanwhile, Ms. Olmeda was resisting and yelling. Appellant was downstairs, ensuring that one of Ms. Olmeda’s young children did not make his way upstairs to help his mother or escape to call for help. While appellant was downstairs, a cohort walked passed him to obtain a knife from the kitchen. Also, the men who were upstairs yelled down for appellant to supply them with more cord, which could be found in a kitchen drawer. In response, appellant threw them an extension cord. When appellant was leaving with the group, he noticed that one confederate’s jacket was bloody.

The judge, as fact finder, concluded:

This brutal and prolonged attack against Ms. Olmeda occurred inside a small, two-story rowhouse, which was thirty feet, nine inches long, and fifteen feet, nine inches wide. (N.T. 3.78-3.81). There was testimony other persons were easily heard on other floors inside this two room per floor, airlite house. (N.T. [3.81]). The deceased was tied, strangled, and repeatedly stabbed at the top of the second floor stairs while the defendant was on'the first floor. Defendant was also aware of co-defendant George Padilla’s reputation as a “hitman” (N.T. 4.29) at the time of this incident.
It was simply inconceivable to this Court, as factfinder, that defendant did not know that the victim was being brutally murdered during the time that he acted in concert with his *397co-felons by providing an instrument for her death, the extension cord, and by guarding over her children.

Trial Court Opinion at 9.

No evidence established that the electric extension cord which appellant threw upstairs was used to strangle Ms. Olmeda. To the contrary, the extension cord was found wrapped around Ms. Olmeda’s torso and tied to the railing, while a telephone cord, which was ripped from an upstairs telephone, was found wrung around the victim’s throat. See N.T. February 27, 1991 at 3.53 (testimony of Officer Gage); id. at 3.58 (testimony of Officer Harmer). Moreover, there was no evidence to the effect that appellant was aware that a co-conspirator went to the kitchen for the purpose of obtaining a knife and that appellant saw a co-conspirator return upstairs with a knife. Even if the trial court could have inferred that a cohort passed by appellant to get the knife and brought it upstairs, the Commonwealth elicited no evidence that appellant was aware that the cohort who passed by was carrying a knife. Furthermore, that appellant noticed blood on Anthony Moss’ jacket when all of the co-defendants were leaving cannot establish an earlier intent to kill.2

Viewing the evidence in the light most favorable to the Commonwealth, the Commonwealth proved that appellant and co-conspirators forcibly entered Ms. Olmeda’s house. Appellant was shown to have realized that they were to rob her. Therefore, he was certainly part of a conspiracy to commit robbery.

Next, appellant agreed to watch the victim’s oldest child, who was sleeping on the couch on the first floor. While he was watching the child, there was noise — banging and yelling — from the co-defendants and victim, who were upstairs. Appellant heard the noise. There was no indication that *398appellant saw what transpired on the second floor.3 Appellant noticed a cohort pass by, go into the kitchen, and return upstairs. Appellant was directed to toss up an extension cord which could be found in the kitchen drawer. Appellant went into the kitchen, saw an extension cord hanging out of a kitchen drawer, and walked to the bottom of the stairs, where he threw the cord to a co-defendant who was waiting on the stairs. Appellant continued to watch the child on the couch. When the group returned downstairs, and they all left, appellant noticed blood on Tony Moss’ sleeve.

The above evidence falls short of establishing that appellant harbored a specific intent to kill Elsie Olmeda. Before appellant and his co-defendants entered Ms. Olmeda’s house, no one evinced an intent to kill her. Therefore, any intent must have arisen while the robbers were inside the house.

There was no evidence showing that appellant knew that the extension cord would be used to strangle Ms. Olmeda. The fact that he supplied an extension cord to his co-defendants, who were upstairs with a victim who was yelling, did not establish that appellant willed the co-defendants to use the cord to wrap around the robbery victim’s neck. The object of appellant’s actions was to participate in a conspiracy to rob. He did not partake in a second conspiracy whose object was to kill, although the co-defendants upstairs did. The act of supplying the extension cord furthered the robbery by providing a means to restrain the victim and by facilitating access to the cache of money, but that act was not sufficient to establish appellant’s specific intent to kill. Appellant also watched a child during the robbery. The mere fact that there was noise upstairs did not render appellant knowledgeable of a scheme to murder. Therefore, his standing post downstairs indicated *399only his complicity in a robbery conspiracy. After a review of the evidence, therefore, I conclude and would hold that the Commonwealth adduced insufficient evidence to prove appellant guilty of first degree murder.4

For the foregoing reasons, I concur in part and dissent in part.

. I agree with the majority that appellant knowingly and voluntarily pleaded guilty and that counsel was not ineffective.

. See Commonwealth v. Berkowitz, 415 Pa.Super. 505, 523-24 n. 6, 609 A.2d 1338, 1347 n. 6 (1992), petition for allocatur granted, 531 Pa. 650, 613 A.2d 556 (1992) (evidence after completion of act not relevant to intent to commit act).

. Elsie Olmeda was found bound to a railing located between the bathroom and the children’s room. See N.T. February 26, 1991 at 2.68. While there was evidence that the bathroom could be seen from downstairs, there was no evidence that the hallway, where Ms. Olmeda was found, could be seen from downstairs. Indeed, by accepting the substance of appellant’s statement, the court found that appellant remained downstairs, watching the child on the sofa. See Trial Court Opinion at 8.

. Appellant pleaded guilty to murder generally. During trial, he was shown to have participated in a robbery. Therefore, appellant is guilty of second degree murder. See 18 Pa.C.S.A. § 2502(b), (d) (felony murder). Because there is no triable issue as to whether appellant is guilty of second degree murder, I would remand to the trial court with directions to enter judgment of sentence in accordance with a conviction of second degree murder.