No. 219 April Term, 1978, Appeal from the Judgment of Sentence of August 30, 1977, of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 7608411.
John R. Cook and Lester G. Nauhaus, Assistant Public Defenders, Pittsburgh, for appellant.
Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, Pittsburgh, for Com., appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ.
[ 257 Pa. Super. Page 161]
Following a jury trial on May 25, 1977, appellant was convicted of burglary*fn1 and criminal conspiracy.*fn2 Post-trial motions were denied and appellant was sentenced to concurrent terms of three and a half to seven years imprisonment. Appellant first contends that the lower court erred in denying his motion to dismiss the conspiracy indictment and in failing to grant his demurrer to that charge. Finding merit in this claim, we will reverse the conspiracy conviction and discharge appellant on that count.
Appellant and one Ronald Cummings were both charged with burglary and conspiracy in connection with the October 31, 1976, entry of a residence at 4335 Mt. Royal Drive in Pittsburgh. The conspiracy indictment against appellant named only Ronald Cummings as appellant's coconspirator, and Cummings was acquitted of both burglary and conspiracy in a proceeding prior to appellant's trial. In the lower court, appellant relied on the principle expressed by this court in Commonwealth v. Hunter, 240 Pa. Super. 23, 360
[ 257 Pa. Super. Page 162]
A.2d 702 (1976), quoting Commonwealth v. Salerno, 179 Pa. Super. 13, 16-17, 116 A.2d 87, 89 (1955).
"'In a charge for conspiracy the Commonwealth must prove that two or more are guilty. Com. 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. Com. v. Avrach, 110 Pa. Super. 438, 441, 168 A. 531. The law requires only that there be at least two guilty conspirators, not that there be two convicted conspirators. Where one of the two conspirators is acquitted, then there is a legal determination that one is innocent and thus there cannot be two guilty conspirators. Where, however, one is not yet indicted or for some reason cannot be tried, there is no bar to the conviction to the other.'" 240 Pa. Super. at 32, 360 A.2d at 706.
The Commonwealth, on the other hand, maintains that Hunter, apparently the first case dealing with this issue under the Crimes Code,*fn3 was incorrectly decided. The conspiracy section of the Crimes Code, 18 Pa.C.S. § 903, is based on § 5.03 of the American Law Institute's Model Penal Code (MPC). The Commonwealth's argument is premised on certain language in the comments to the MPC.
"The definition of the Draft [§ 5.03 Criminal Conspiracy became § 903 of Pennsylvania Crimes Code] departs from the traditional view of conspiracy as an entirely bilateral or multilateral relationship, the view inherent in the standard formulation cast in terms of 'two or more persons' agreeing or combining to commit a crime. Attention is directed instead to each individual's culpability by framing the definition in terms of the conduct which suffices to establish the liability of any given actor, rather ...