No. 416 January Term, 1977, Appeal from Order of Pennsylvania Superior Court at No. 412 October Term, 1976, Reversing Judgment of Sentence of Common Pleas Court, Criminal Division, Schuykill County, No. 356A September Term, 1972.
Adam D. Bavolack, Asst. Dist. Atty., McAdoo, for appellant.
Wallace C. Worth, Jr., Allentown, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., and Pomeroy, former J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion in this case, joined by Larsen, J.
Appellee, Ben Sadusky, was convicted by a jury of two counts of conspiracy. More specifically, he was found to have conspired with Elmer Johnson, former Chairman of the Board of Commissioners of Schuykill County to commit a misdemeanor in office by obtaining money from the county by fraudulent pretenses and by obtaining authorization from Johnson to perform work in violation of the bidding requirements.*fn1 The trial court dismissed the objection to the sufficiency of the evidence and entered the judgment of sentence. On appeal to the Superior Court the judgment of sentence was reversed after that court determined that the
evidence was insufficient to support the verdicts of guilt. We granted the Commonwealth's request for review to consider the question of the sufficiency of the evidence.
The standard for appellate review of the sufficiency of the evidence, where, as here the Commonwealth depended upon establishing guilt by circumstantial evidence, was set forth in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). In that case we stated:
In determining the sufficiency of the evidence the test is whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which, if believed, a finder of fact could properly have based its verdict, such evidence was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt.
This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Moreover, it is not necessary that each piece of evidence be linked to the defendant beyond a reasonable doubt. It is only necessary that each piece of evidence include the defendant in the group who could be linked while excluding others, and that the combination of evidence link the defendant to the crime beyond a reasonable doubt. Restated, the facts and circumstances need not be absolutely incompatible with defendant's innocence, but the question of any doubt is for the jury unless the evidence "be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances." Id., 472 Pa. at 149-50, 371 A.2d at 478 (citations omitted) (emphasis in original).
The gravamen of the crime of conspiracy is the illicit agreement or coming together, i. e., the "common understanding or agreement which is the heart of every conspiracy . . ." Commonwealth v. Waters, 463 Pa. 465, 471, 345 A.2d 613, 616 (1975). This agreement ...