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May 6, 1980


The opinion of the court was delivered by: SHAPIRO


On May 13, 1976, following a jury trial in the Court of Common Pleas for Philadelphia County, Robert Williams was found guilty of voluntary manslaughter in violation of 18 Pa.C.S.A. § 2503 *fn1" and criminal conspiracy in violation of 18 Pa.C.S.A. § 903, *fn2" and not guilty of murder, robbery and burglary. He was sentenced on November 23, 1976, following the denial of post trial motions, to four to ten years for voluntary manslaughter and three to ten years for criminal conspiracy to be served consecutively, for an effective sentence of seven to twenty years. Claiming insufficiency of the evidence, plaintiff appealed to the Supreme Court of Pennsylvania, but that court affirmed the judgment per curiam on March 14, 1979. Commonwealth v. Williams, 484 Pa. 50, 398 A.2d 655 (1979). Mr. Williams then filed this pro se petition under 28 U.S.C. § 2254 for a federal writ of habeas corpus claiming insufficiency of the evidence as to both charges. He was allowed to proceed in forma pauperis. The Magistrate has recommended that the Court deny the petition. This Court agrees that the petition should be denied, but for reasons different in certain respects from those given in the Magistrate's Report. We therefore adopt those portions of the Report that are consistent with the following discussion and adopt the recommendation to deny the petition for writ of habeas corpus. *fn3"

 As the Magistrate noted, the Supreme Court has recently announced that on review of a state prisoner's habeas corpus petition claiming a violation of due process for lack of sufficient evidence to support conviction, a federal court's inquiry should be

. . . whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .

 Jackson v. Virginia, 443 U.S. 307, at 319, 99 S. Ct. 2781, at 2789, 61 L. Ed. 2d 560, at 573 (1979) (emphasis in original). Consistent with the underlying constitutional prohibition against criminal convictions except upon proof of guilt beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), this standard must be met for each count that results in conviction. Petitioner was found guilty of voluntary manslaughter and criminal conspiracy.

 With regard to the conviction for criminal conspiracy, it appears from the trial court's charge that four theories of criminal conspiracy went to the jury for consideration. (See, N.T. 553-556). The indictment, as read to the jury, contained an 18 Pa.C.S.A. § 903(a)(1) count charging that Mr. Williams agreed with Mr. Kennedy to engage in criminal conduct and a § 903(a)(2) count charging that he agreed to aid Mr. Kennedy in the planning or commission of a crime. The Court instructed the jury that if they believed there was an agreement "to beat Roy Capellupo or to take money or property from him by force," then they could find the defendant guilty of criminal conspiracy (N.T. 556) (emphasis supplied). This language is the only portion of the jury charge to mention the alleged criminal objectives of the conspiracy charge. Apparently, the predicate crimes to which the trial judge was referring were robbery, 18 Pa.C.S.A. § 3701, *fn4" and assault, although it is unclear whether the judge meant simple assault, id. § 2701, *fn5" or aggravated assault, id. § 2702, *fn6" since he did not specify the elements of those offenses for the jury. (The indictment also listed burglary as a conspiratorial objective, but this was not included in the jury charge.) As required by 18 Pa.C.S.A. § 903(e), *fn7" overt acts were charged, those being the blows directed by either alleged co-conspirator against the victim. The jury returned a general verdict of guilty as to criminal conspiracy.

 In the Third Circuit, if a defendant is charged in a single count with conspiracy to achieve any one of a number of illegal objectives and the jury returns a general verdict of guilty on that count, then, where there is insufficient evidence to support conviction of conspiracy with regard to one or more but not all of the multiple objectives, the conviction must be vacated. United States v. Tarnopol, 561 F.2d 466, 473-476 (3d Cir. 1977); United States v. Dansker, 537 F.2d 40, 51 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977); cf., United States v. Brown, 583 F.2d 659, 669-670 (3d Cir. 1978), cert. denied, 440 U.S. 909, 99 S. Ct. 1217, 59 L. Ed. 2d 456 (1979) (convictions for racketeering and conspiracy reversed). This stricture also appears to be the law of Pennsylvania. See, Commonwealth v. Field, 223 Pa.Super. 258, 298 A.2d 908 (1972), allocatur denied. Such a rule avoids the constitutionally infirm possibility of conviction for a conspiracy with an objective as to which there is insufficient evidence. Mindful of these statutory and constitutional considerations, the Court has searched the record to find whether there exists sufficient evidence from which a jury could find guilt on each theory of criminal conspiracy. *fn8"

 The trial transcript in the Common Pleas action furnishes no direct evidence of agreement. As permitted by Pennsylvania law, e.g., Commonwealth v. Kwatkoski, 267 Pa. Super. 401, 406 A.2d 1102, 1105 (1979), the jury was requested instead to draw inferences from the relation between and conduct of the parties in light of surrounding circumstances. In denying Williams' post trial motions, the trial judge found, and this Court agrees, that the evidence is sufficient for a finding of joint action, and thus conspiracy, to beat or aid in beating Mr. Capellupo. Mr. Williams' statement to the police, read to the jury, relates that he and Jon Kennedy, a tenant of Mr. Capellupo, came to Kennedy's apartment and found the lights off. They got Mr. Capellupo to turn them back on, then went back downstairs and to the doorway of Mr. Capellupo's apartment together (N.T. 191). An argument ensued (N.T. 43), they both hit Mr. Capellupo, petitioner first (N.T. 384), and Kennedy struck him with an ashtray or smoking stand in petitioner's presence (N.T. 191-192). See, Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976) (evidence of conspiracy to assault sufficient where defendant was seen passing weapon to co-conspirators and leaving bar with them shortly behind victim, and participated in beating).

 The more difficult question is whether the evidence is also sufficient to support a conviction for conspiracy to commit or aid in committing robbery. Neither the Commonwealth nor the trial judge's post trial opinion consider this question. In its per curiam review, Commonwealth v. Williams, 484 Pa. 50, 398 A.2d 655 (1979), the Pennsylvania Supreme Court cites without discussion a single case involving conspiracy to commit robbery, Commonwealth v. Waters, 463 Pa. 465, 345 A.2d 613 (1975). In that case, evidence of conspiracy to commit robbery was held sufficient where the defendant entered a bar with companions and in possession of a weapon, participated in "fanning out" across the bar when a holdup was announced, and ran to the same getaway car as a companion. It is not as clear that petitioner's actions in the instant case point beyond a reasonable doubt toward a plan or agreement to rob.

 The record has been reviewed with care in the light of that case as well as other Pennsylvania cases, most particularly, Commonwealth v. Holman, 237 Pa.Super. 291, 352 A.2d 159 (1975) and Commonwealth v. Johnson, 265 Pa.Super. 418, 402 A.2d 507 (1979). In Holman, the evidence was held insufficient to establish conspiracy to commit robbery. The Commonwealth adduced testimony that a group of four men emerged from a bar together. Spotting three women with purses in the immediate vicinity, one said "we got bingo money," whereupon some or all of the group attempted to wrestle away the purses. Defendant admitted being at the scene of the crime and taking one of the purses. The court held the evidence of conspiracy insufficient because the testimony was "equally susceptible" to the opposite inferences that the crime arose from a plan or agreement and that it arose from "a spontaneous intent to rob upon sighting the victims on the street corner." 352 A.2d at 162.

 In Johnson, the evidence was held sufficient to establish conspiracy to commit robbery. Testimony showed that the defendant joined five other men in "barging into" a men's room, was present while a team-executed robbery was attempted and partially completed, and fled with the others. After entering the men's room, the men proceeded immediately to restrain the victim, demand that he "give it up," and search for money. The record also permits an inference that shortly before these events, some or all of the men detected the victim was carrying a sum of money. Viewing the evidence in the light most favorable to the Commonwealth in the instant case, it is more closely analogous to Johnson.

 In addition to the facts of record previously recited, one eyewitness stated that she saw Mr. Williams hit Mr. Capellupo "and push him back in the door of his apartment" (N.T. 68). Mr. Capellupo's telephone wire was cut (N.T. 25, 145-146). The left rear pocket of Mr. Capellupo's pants had been ripped considerably (N.T. 183). The victim in a dazed condition and near death nodded yes to a police officer at the hospital who asked if he had been robbed by a tenant (N.T. 181-182). Jon Kennedy was a tenant in the building (N.T. 127). Further, petitioner's statement to the police relates that:

I saw Jon rip his pants, the old man's. He was looking for money. After we got in the car, he gave me three dollars. I bought Thunderbird wine with the money. . . . I saw him rip his ...

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