No. 952 October Term, 1978, Appeal from Judgment of Sentence imposed February 10, 1978, Court of Common Pleas, Criminal Section, Trial Division, County of Philadelphia, No. 1291 April Term, 1977.
Allan M. Tabas, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
Van der Voort, Wieand and Lipez, JJ.
[ 273 Pa. Super. Page 565]
Jeffrey Knox was convicted by a jury of the offense of criminal conspiracy arising from a prison rape. Post trial motions were denied, and this appeal was taken from the judgment of sentence. We affirm.
Appellant contends that the evidence is insufficient to support his conviction. In determining the sufficiency of the evidence, this Court is required to consider the evidence in the light most favorable to the Commonwealth, accepting all reasonable inferences which the jury could have drawn therefrom. Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).
[ 273 Pa. Super. Page 566]
The essence of every criminal conspiracy is a common understanding, no matter how it came into being. Commonwealth v. Minnich, 236 Pa. Super. 285, 288, 344 A.2d 525, 526 (1975). A conviction for conspiracy may not rest on mere presence at the scene of the crime, with knowledge that a crime is being committed. However, a "conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed." Commonwealth v. Horvath, 187 Pa. Super. 206, 211, 144 A.2d 489, 492 (1958). Furthermore, circumstances which are insufficient to support a conviction of conspiracy when each stands alone may be sufficient to support a conviction when considered in their totality. Commonwealth v. Clark, 256 Pa. Super. 97, 101, 389 A.2d 619, 621 (1978).
The evidence in the instant case established that on the night of April 4, 1977, appellant, together with Hadley Nelson and John Hunter who were fellow inmates at Holmesburg Prison, were in discussion about Frederick Lee, another prisoner in the same cell block. The three agreed that Lee was "doing something", and they decided to go to his cell to "check it out". As the prisoners entered Lee's cell, one of them stated, "Hey man, you's a girl." Appellant struck Lee in the face, and the two others quickly joined in striking Lee about his face and body. When Nelson exclaimed, "Man you're going to give up some sex", appellant threw Lee on the bed, and Hunter jumped on Lee's back. Nelson then penetrated Lee anally while appellant and Hunter watched in laughter. The three prisoners then left the cell, only to return in ten minutes, when Nelson sexually assaulted Lee once again.
These circumstances depicted clearly a concerted, sexual assault committed by three prisoners on a fourth. The evidence was sufficient to permit a finding of a criminal conspiracy. Cf. Commonwealth v. Johnson, 485 Pa. Super. 328, 402 A.2d 507 (1979).
[ 273 Pa. Super. Page 567]
Appellant contends that the trial court should have suppressed the victim's identification testimony because of a taint allegedly caused by an earlier prison identification. On the morning following the rape, a prison official, who had received a tip from a prison informant, took Lee from cell to cell in an effort to identify his attackers. Lee identified Nelson and Hunter in a positive manner, but with respect to appellant, he said, "I think he's one of them." Because of Lee's apparent uncertainty, appellant was not removed from the general prison population. Later on the same day, during lunch, Lee was ...