No. 1168 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 630 and 632, April, 1977.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, Hester and Hoffman, JJ.
[ 269 Pa. Super. Page 20]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. Appellant was found guilty of Conspiracy and Robbery and sentenced to two years non-reporting probation on each count.
Appellant initially challenges the sufficiency of the evidence produced below.
Upon an allegation of insufficiency of evidence, we review the evidence in the light most favorable to the Commonwealth, drawing all reasonable inferences to the Commonwealth. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).
On March 31, 1977, the "Granny Squad" of the Philadelphia Police Department (so named, because, as here, one officer is dressed to appear as an elderly lady, acting as a decoy for potential muggers and pursesnatchers) staked out an area around 12th and Commerce Streets in center city Philadelphia. Officer Michael Mormello was the decoy. Two other Philadelphia policemen, in plainclothes, waited nearby. The two backup policemen observed appellant and one Robert Hutchinson, talking with one another in a restaurant at 12th and Commerce Streets. The officers were attracted to appellant and his accomplice because they repeatedly gestured towards the decoy. The two men left the restaurant together. Appellant stood on the corner while Mr. Hutchinson proceeded by Commerce, past the Decoy, to 11th Street. Appellant nervously looked at Hutchinson, then to the two parked police cars on 12th Street. Hutchinson, after he reached 11th Street, turned and headed back toward the decoy. At that point, the two marked police cars pulled away, whereupon appellant gestured frantically towards Hutchinson. Hutchinson quickly ran to the decoy and grabbed the purse. The two backup officers, who had witnessed all of the above, immediately apprehended Hutchinson. Appellant fled into the restaurant, where he was also immediately captured. Appellant, while being led away, told the decoy that he knew who he was and would get him when he got out of jail.
[ 269 Pa. Super. Page 21]
Appellant contends that his conviction was based on mere suspicion and conjecture. His premise is founded upon the fact that his conversation and pointing could be interpreted in more than one manner and that the inference of non-complicity was equally reasonable.
We disagree. The testimony of the officer clearly produced a reasonable inference that appellant and Hutchinson were part of a conspiracy to mug the decoy.
In establishing a conspiracy, direct proof of an explicit or formal agreement is not required. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). This proof (of a conspiracy) may be inferentially established by showing the conduct and circumstances of the parties and the overt acts on the part ...