No. 922 October Term, 1977, Appeal from the Sentence of the Court of Common Pleas, Trial Division, Philadelphia County, May Term, 1976, Nos. 2229 and 2233.
Julius E. Fioravanti, Philadelphia, for appellant.
F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 530]
This is an appeal from the judgment of sentence of the Criminal Division of the Court of Common Pleas of Philadelphia County by the Appellant, Dayne Cofer, following his conviction in a non-jury trial of robbery and criminal conspiracy.
The facts are as follows: At approximately 11:10 on the morning of May 19, 1976, the Appellant, in the company of Gregory Johnson and Russell James, conducted an armed robbery of the Tilden Food Market, at 3539 Vaux Street, in the city of Philadelphia. Johnson and the Appellant were confronted by Officer Helmetag of the Philadelphia Police Department as they emerged from the food market following the robbery. Appellant was carrying a loaded .32 caliber pistol; Johnson a loaded .22 caliber pistol. Appellant was immediately apprehended, handcuffed and identified by an eye witness and one of the victims. Russell James was apprehended approximately 30 minutes following the robbery
[ 257 Pa. Super. Page 531]
as he emerged from an automobile. Said automobile was found to contain items admittedly taken in the robbery.
Appellant argues that the alleged criminal conspiracy between himself and the co-defendant, Russell James (the existence of which is not conceded) had terminated at the time of Appellant's apprehension by the police; and, therefore, the evidence and testimony regarding the automobile and its contents was improperly introduced against Appellant at his trial on the conspiracy charge.
Thus Appellant alleges that the introduction of that evidence was improper and therefore the convictions on the criminal conspiracy and robbery charges must be reversed.
Appellant contends that this situation is controlled by the general evidentiary principle that declarations, acts, or physical evidence obtained from one purported co-conspirator is admissible against the other only so long as the conspiracy continues, but if obtained afterwards, is not admissible. Wagner v. Aulenbach, 170 Pa. 495, 32 A. 1087; Commonwealth v. Johnson, 365 Pa. 303, 74 A.2d 144 (1950); Commonwealth v. ...