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August 22, 1980


Before Price, Cavanaugh and Watkins, JJ.

Author: Cavanaugh


The sole issue presented in this appeal is whether a coconspirator who, in a separate trial, is convicted of criminal conspiracy, is entitled to an arrest of judgment and discharge where the only other conspirator named in the information is acquitted in a subsequent trial.

Appellee, Richard L. Ott, and his brother, Larry Eugene Ott, were arrested on September 6, 1978 and charged with arson, criminal mischief and conspiracy. Appellee requested a separate jury trial from his brother. On February 15, 1979 the jury returned a verdict of not guilty on the charge of arson and guilty on the conspiracy charge. The Commonwealth nol prossed the charge on criminal mischief at trial. On May 15, 1979, Larry Ott was convicted of criminal mischief but was acquitted of arson and conspiracy. Appellee, in his post-trial motions, argued that Larry Ott's acquittal of conspiracy in the subsequent trial compels the vacation of his conviction of conspiracy. The trial court agreed and granted appellee's motion in arrest of judgment. The Commonwealth appealed.

We find that the issue presented has been decided by our Supreme Court in Commonwealth v. Byrd, Pa. , A.2d (1980) Nos. 273, 275, January Term, 1976 (slip opinion filed July 3, 1980) wherein the Court stated:

"Appellant next maintains that his conspiracy conviction cannot stand because Smith, his only alleged coconspirator was subsequently acquitted of conspiracy at a separate trial. We reject this claim. There is no doubt that the crime of conspiracy requires proof of more than a single participant. 18 Pa. C.S. § 903(a).*fn5 As Justice Cardozo once noted: "It is impossible in the nature of things for a man to conspire with himself." Morrison v. California, 291 U.S. 82, 92, 54 S.Ct. 281, 285 (1934). Nevertheless, such generalizations do not require that a valid conviction for conspiracy against one defendant must be held in limbo pending the outcome of the separate trial or trials of all alleged coconspirators. Nor do they require that a valid conspiracy conviction must subsequently be nullified by the acquittal of the other or others charged.

At the outset it is important to emphasize certain already well-established principles in this area. There is no doubt, for example, that one convicted of conspiracy is not entitled to relief simply because others charged have not yet been tried. United States v. Shipp, 339 F.2d 185 (6th Cir. 1966); DeCamp v. United States, 10 F.2d 984 (D.C.Cir. 1926). That the prosecution has nolle prossed charges against one or all of the others indicted is equally insufficient to afford a single convicted conspirator any relief. United States v. Koritan, 283 F.2d 516 (3rd Cir. 1960) aff'g 182 F.Supp. 143 (E.D.Pa.); United States v. Fox, 130 F.2d 56 (3rd Cir.), cert. denied, 317 U.S. 666, 63 S.Ct. 74 (1942); State v. Goldman, 85 N.J.Super. 50, 229 A.2d 818 (1967). So too, that the only other coconspirators have been granted immunity and so cannot be tried does not bar conviction of the remaining defendant. Hurwitz v. State, 200 Md. 578, 92 A.2d 575 (1952); Berry v. State, 202 Ind. 294, 303, 165 N.E. 61 (1929), 173 N.E. 705 (1930); see Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938) (diplomatic immunity). And, indeed, it is established that where the other alleged coconspirators are unapprehended, Rosenthal v. United States, 45 F.2d 1000 (8th Cir. 1930), unindicted, United States v. Monroe, 164 F.2d 471 (2d Cir. 1947), cert. denied, 333 U.S. 828, 68 S.Ct. 452 (1948), dead, People v. Nall, 242 Ill. 284, 89 N.E. 1012 (1909), or even, in some circumstances, unknown, United States v. General Motors Corp., 121 F.2d 376, 411 (7th Cir.), cert. denied, 314 U.S. 618, 62 S.Ct. 105 (1941), there is no basis to disturb a valid conviction for conspiracy. See generally Gardner v. State, Md. , , 408 A.2d 1317, 1320 (1979); Developments in the Law - Criminal Conspiracy, 72 Harv.L.Rev. 922, 973 (1959). The only question still apparently open to any debate, see e.g., People v. Kurland, 266 N.Y. 1, 193 N.E. 439 (1934) (question is "arguable"), is whether an acquittal of all alleged coconspirators should produce a different result. At least in the case, such as this, of a subsequent acquittal, we do not believe that it should.

Admittedly, some authority, including certain decisions of our own Superior Court, does assert that the acquittal of all but one conspirator requires the discharge of the remaining defendant. E.g., Commonwealth v. Campbell, 257 Pa. Super. 160, 390 A.2d 761 (1978); Commonwealth v. Avrach, 110 Pa. Super. 438, 168 A. 531 (1933); see note 6, infra. This rule, however, had its origins at a time when coconspirators were jointly tried. In that circumstance a single jury would hear the evidence of conspiracy and, rightly, would not be permitted to find the evidence sufficient to prove a conspiracy involving only one of those charged. The acquittal rule that developed was thus clearly a rule of verdict consistency. Gardner, supra at , 408 A.2d at 1319-20; Developments, supra at 972-74; see e.g., United States v. Musgrave, 483 F.2d 327, 333 n.10 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447 (1973) explaining Herman v. United States, 289 F.2d 362 (5th Cir. 1961); see also W. LaFave and A. Scott, Jr., Criminal Law § 62, at 488 (1972). It is evident that Avrach, supra, the leading case in our Superior Court, is premised on just such a foundation. In the case of separate trials, however, this consistency rule loses much if not all of its force.

An acquittal at any trial is never a guarantee that no crime has been committed. Rather it signifies only that the Commonwealth has not proved its case to the satisfaction of the jury. Thus in the present case, different verdicts may well have been due solely to the different composition of the two juries. Alternatively, the difference may have been due to a variety of other circumstances, including a difference in the proof offered at trial. As the Fifth Circuit Court of Appeals has recently explained, "acquittal [of one of the conspirators] could have resulted from a multiplicity of factors completely unrelated to the actual existence of a conspiracy." United States v. Strother, 458 F.2d 424, 426 (5th Cir. 1972). It is error to assume that the failure of a jury to convict one conspirator necessarily invalidates the Commonwealth's verdict, won from a different jury, at a separate trial. Such a misconception was clearly exposed by the Supreme Court of Nebraska, which long ago rejected the acquittal rule which appellant urges:

"It seems to us that reason and sound logic do not support the rule where one of two conspirators is convicted in a separate trial, that he shall be discharged because the second may be acquitted for a multitude of reasons having nothing to do with his guilt. The acquittal of the second conspirator could well result from the death or absence of an important state witness, the incompetency of a confession of the convicted conspirator in the second trial,... or for any other reason that would amount to a failure of proof.

Platt v. State, 143 Neb. 131, , 8 N.W.2d 849, 855 (1943).

This view has been adopted by most of the jurisdictions which have since had occasion to consider the present question. Gardner v. State, supra; People v. Holzer, 25 Cal. App.3d 456, 102 Cal. Rptr. 11 (Ct. App. 1972); see United States v. Musgrave, 483 F.2d 327 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S.Ct. 447 (1973); State v. Marshall and Brown-Sidorowicz, P.A., Kan. , , 577 P.2d 803, 820 (Ct. App. 1978); see also State v. Oats, 32 N.J.Super. 435, 108 A.2d 641 (1954); but see Eyman v. Deutsch, 92 Ariz. 823, 373 P.2d 716 (1962) (3-2; dissent approving Platt).

In addition this is the view adopted by the American Law Institute's Draft Model Penal Code. As the Comments to the Model Code explain:

"[It is] immaterial to the guilt of a conspirator whose culpability has been established that the person or all of the persons with whom he conspired have not been or cannot be convicted.... Under the Draft the failure to prosecute the only coconspirator or an inconsistent disposition or inconsistent verdict in a different trial would not affect a defendant's liability. This result... recognizes that inequalities in the administration of the law are, to some extent, inevitable, that they may reflect unavoidable differences in proof, and ...

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