Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, Nos. 1216 and 1217, in case of Commonwealth of Pennsylvania v. William Eiland.
Roy H. Davis, for appellant.
Albert L. Becker, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Mr. Chief Justice Jones dissents.
In November, 1971, appellant, William Eiland, was tried non-jury and adjudicated guilty of conspiracy and murder in the second degree. Sentence was deferred pending post-trial motions. Following the denial of motions for a new trial and in arrest of judgment appellant was sentenced to imprisonment of three to ten years on the murder charge and received a suspended sentence on the conspiracy charge. In this direct appeal appellant alleges three errors.*fn*
Appellant first argues that the evidence presented at trial was insufficient to support a verdict of guilty of conspiracy. This Court has held that "the test of the sufficiency of the evidence . . . is whether, accepting as true all the evidence and all reasonable inference therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. Smith, 447 Pa. 457, 463, 291 A.2d 103, 105 (1972); Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969), see also Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973).
An examination of the facts adduced at trial reveals the following: Appellant had been at a playground with about ten other youths drinking wine. According to appellant, Harold "Turk" Gordon, one of the other gang members, had been saying all day long that he was going to get one of the members of the rival Sommerville gang. Appellant left the group to get dressed for a party and buy some more wine. When he returned "Kay", another member of the gang, came running up and said he had been hit on the head by one of the Sommerville gang. The group started walking toward the direction where "Kay" had been hit. According to appellant's testimony they passed Turk coming out of his house and appellant "asked him if he had it [a gun]. He said yes. I said, 'What you got?' He said, 'The pump,' and then showed me the barrel part from under his coat. Then he went on ahead of me."
As they were proceeding appellant stopped to hide his bottle of wine in a driveway. He lost sight of the rest of the gang. About ten or fifteen minutes later when he found them again, one member said "we got one." Appellant then told Turk that "he better take his coat off before the man comes around here."
Appellant claims that there was no evidence presented at trial showing any actual agreement, any group plan to commit murder, or that appellant actually acquiesced in any such plan. However, it is established law in this Commonwealth that a conspiracy may be proved by circumstantial evidence as well as by direct evidence. 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); Commonwealth v. Neff, 407 Pa. 1, 179 A.2d 630 (1962); Commonwealth v. DeMoss, 401 Pa. 395, 165 A.2d 14 (1960); Commonwealth v. Musser Forests, Inc., 394 Pa. 205, 210, 146 A.2d 714, 716 (1958); Commonwealth v. Evans, 190 Pa. Superior Ct. 179, 201, 154 A.2d 57, 71 (1959), aff'd per curiam, 399 Pa. 387, 160 A.2d 407 (1960). Although 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 on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: . . .'" Commonwealth v. Neff, supra at 6, 179 A.2d at 632, quoting Commonwealth v. Horvath, 187 Pa. Superior Ct. 206, 211, 144 A.2d 489, 492 (1958).
Moreover, a co-conspirator is not relieved of liability because he is not present at the execution of the crime. Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955). As we noted in Commonwealth v. Thomas, 410 Pa. 160, 165, 189 A.2d 255, 258 (1963): "Where the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators if such acts are done in pursuance of the common ...