Appeal from Judgment of Sentence imposed April 11, 1975 in the Court of Common Pleas, Criminal Division, Delaware County, at No. 1117, 1118 May Term, 1973. No. 1173 October Term, 1975.
John M. Gallagher, Jr., Upper Darby, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, Media, for appellee.
Watkins, President Judge, and Cercone, Price and Van der Voort, JJ. Jacobs, Hoffman and Spaeth, JJ., absent.
[ 245 Pa. Super. Page 76]
In the early morning of February 19, 1973, appellant, a 26-year-old detective-patrolman with four years service on the Darby Borough Police Department, went to the S.I.M.S.
[ 245 Pa. Super. Page 77]
Club to assist in the service of various purported warrants*fn1 charging Anthony Raffaele and six others with selling liquor after hours. Upon arriving at the club, appellant and several other officers entered and began serving these warrants and making arrests. When appellant attempted to serve one such warrant upon Raffaele a fight took place and as a result Raffaele was hospitalized. Raffaele subsequently filed criminal complaints against appellant and two other officers of the Darby Borough Police Department. The three officers were indicted by the grand jury on charges of assault and battery, aggravated assault and battery and conspiracy,*fn2 and in a consolidated trial the jury acquitted appellant's fellow officers of all charges but found appellant guilty of assault and battery and conspiracy. Appellant's post-verdict motions were denied, and he was sentenced to serve one year on probation and ordered to pay a fine of $750. He now appeals to this court.
The first matter to be considered is appellant's contention that his conviction for conspiracy should be vacated because his alleged co-conspirators were acquitted. In support of this position appellant points to the case of Commonwealth v. Salerno, 179 Pa. Super. 13, 16-17, 116 A.2d 87, 89 (1955) which states:
"In a charge for conspiracy the Commonwealth must prove that two or more are guilty. Commonwealth v. Faulknier, 89 Pa. Super. 454, 459. Where, therefore, there are only two conspirators and one is acquitted, the other cannot, of course, be tried or convicted." Accord Commonwealth v. Turchetto, 193 Pa. Super. 376, 378, 165 A.2d 118 (1960).
[ 245 Pa. Super. Page 78]
This rule, however, is not without an exception. The case of Commonwealth v. Avrach, 110 Pa. Super. 438, 441, 168 A. 531 (1933) states:
"Where an indictment charges a conspiracy among specifically named defendants and other persons unknown to the grand jury, and there is at the trial proof of a conspiracy with the persons who are unknown, there is an exception to the rule that a jury may not ...