Commonwealth v. Dussinger

386 A.2d 500, 478 Pa. 182, 1978 Pa. LEXIS 599
CourtSupreme Court of Pennsylvania
DecidedApril 28, 1978
Docket347 and 387
StatusPublished
Cited by43 cases

This text of 386 A.2d 500 (Commonwealth v. Dussinger) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dussinger, 386 A.2d 500, 478 Pa. 182, 1978 Pa. LEXIS 599 (Pa. 1978).

Opinions

OPINION

O’BRIEN, Justice.

Appellant, Constance Dussinger, also known as Constance Kelley, was tried by a judge and jury and was convicted of two counts of murder of the second degree, robbery, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to two concurrent terms of life imprisonment. Sentence was suspended on the robbery and conspiracy convictions. The homicide convictions were appealed directly to this court, while the non-homicide convictions were appealed to Superior Court, which certified those appeals to this court.

The facts are as follows. On July 3, 1974, the partially decomposed bodies of Willie Billingsley and Ernest Barnes were discovered in Billingsley’s Philadelphia residence. Both victims died of gunshot wounds to the head. The [186]*186medical examiner found it impossible to accurately determine the times of death, but he estimated that both deaths occurred between 6:00 a. m. on Monday, July 1, 1974 and 6:00 p. m. on Tuesday, July 2, 1974.

During their investigation, police discovered that Billingsley held at his residence Monday-night poker games involving large sums of money. Police discovered that a game was held on July 1, 1974, two days before the bodies were discovered. Investigation further revealed that Billingsley, during the week prior to his death, had “hit a number” for well over one thousand dollars. Despite the foregoing facts, no money was found on either of the victims or in the house. Further, when Billingsley’s body was discovered, the pockets of his trousers were pulled out and a large glass bank was broken into two pieces.

During their investigation, the police found that appellant had been employed by Billingsley to serve food and drinks at his weekly poker games. She was originally questioned concerning Billingsley’s background; however, she subsequently gave police an inculpatory statement. According to appellant, in late June of 1974, a co-defendant, Ervin Warren, had stolen approximately $1,500 worth of payroll checks. Warren gave the checks to appellant, who gave them to Billingsley. Warren later decided to cash the checks himself and told appellant to get the checks back. When appellant forgot to get the checks, Warren, appellant and co-defendant Charles Jackson went to Billingsley’s home to recover the checks. Appellant knew both the purpose of the trip and that both of her companions had guns.

Once inside the Billingsley residence, Jackson handed appellant a gun and instructed her to keep it pointed at Barnes, who was sleeping on a couch. Warren and Jackson then accompanied Billingsley to the upper floor of the house. Appellant stated that five minutes later she heard two or three shots from upstairs, which startled her, causing the gun she was holding to accidentally discharge, killing Barnes. Appellant stated that she then fled the premises and returned home.

[187]*187Appellant first argues that the trial court erred in refusing her demurrer to the conspiracy and robbery indictments. She argues that since she neither took anything nor intended to participate in a robbery, the charges of conspiracy and robbery should not have been submitted to the jury.

The issue as presented to this Court is not properly preserved for appellate review.

In Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976), stated:

“The Appellant frames this question in terms of whether the trial court erred in not sustaining his demurrer to the evidence for lack of proof of cause of death. Since, however, the defendant did not rest following this adverse ruling, but elected to put in a case in defense, the correctness of the ruling on the demurrer is no longer an available issue. See Commonwealth v. Moore, 398 Pa. 198, 201-202, 157 A.2d 65 (1959); Commonwealth v. Spanos, 167 Pa.Super. 629, 631, 76 A.2d 243 (1950). But see Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). We have chosen, nevertheless, to treat the question as if properly framed, namely, whether the trial court erred in refusing defendant’s motion in arrest of judgment. In doing so, of course, we consider all of the evidence at trial, not only that contained in the Commonwealth’s case in chief. See Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965); Commonwealth v. Moore, supra; Commonwealth v. Kohne, 204 Pa.Super. 78, 203 A.2d 401 (1964); Commonwealth v. Gomori, 192 Pa.Super. 325, 161 A.2d 649 (1960); Commonwealth v. Cerzullo, 175 Pa.Super. 330, 104 A.2d 179 (1954).”

The appellant in the instant case, presented a defense. Therefore as in Ilgenfritz, supra we will treat her challenge as one to the sufficiency of the evidence rather than one challenging the correctness of the trial court’s rulings on the demurrers.

In Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975), we stated:

[188]*188“The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); Commonwealth v. Boyd, 461 Pa. 17, 24, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975). Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Robson, supra; Commonwealth v. Murray, supra; Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Robson, supra; Commonwealth v. Smith, supra.”

A review of the evidence in light of this standard makes clear that sufficient evidence is in record to sustain appellant’s convictions for conspiracy and robbery.

In Commonwealth v. Mobley, 467 Pa. 460, 463, 359 A.2d 367, 368 (1976), we stated:

“ . . . It is well-established that a conspiracy may be proved by circumstantial evidence as well as by direct evidence. Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973); Commonwealth v. Batley, 436 Pa. 377, 392, 260 A.2d 793, 801 (1970); Commonwealth v. Yobbagy, 410 Pa. 172, 177, 188 A.2d 750, 752 (1963).

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Bluebook (online)
386 A.2d 500, 478 Pa. 182, 1978 Pa. LEXIS 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dussinger-pa-1978.