No. 133 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Luzerne County at No. 1389 of 1979.
Joseph F. Sklarosky, Assistant Public Defender, Wilkes-Barre, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Spaeth, Hester and Cavanaugh, JJ. Hester, J., files a dissenting statement.
[ 289 Pa. Super. Page 413]
Appellant was charged with burglary, theft and criminal conspiracy. Following a non-jury trial before Olszewski, J. he was convicted of criminal conspiracy to commit burglary and acquitted on the other charges. Appellant's motions for new trial and in arrest of judgment were denied and he was sentenced to imprisonment for not less than four months nor more than five years less one day. He has appealed to this court from the judgment of sentence.
The first issue raised by appellant is that the evidence was not sufficient to sustain his conviction. In judging sufficiency of the evidence, we must view the evidence, and all inferences arising from it, in the light most favorable to the verdict winner. Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979); Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Posavek, 278 Pa. Super. 265, 420 A.2d 532 (1980). So viewed, the evidence was as follows: On April 25, 1979, at about 8:30 P.M. two members of the Wilkes-Barre Police Department were dispatched to a dwelling at 25 Vulcan Street, Wilkes-Barre in response to a possible burglary in process call. Officer Kenny went to the back of the building, which was a duplex apartment house with one apartment on each floor, and entered through the unlocked back door into a small vestibule area. As the officer opened the back door he observed the appellant, George D. Walton, and James Barberio coming down the steps. Appellant was immediately placed under arrest and was searched and found to be in possession
[ 289 Pa. Super. Page 414]
of a large number of keys, a small pry bar and a screwdriver. Mr. Barberio was in possession of a Timex wrist watch with a Speidel band, which was subsequently determined to be the property of Charles D. Bond who was the occupant of the second floor apartment.
Mr. Bond testified that he was at his daughter's house on the evening in question. He received a call from the police department that his home had been broken into. He immediately returned home to find that his apartment had been ransacked, especially in the bedroom area, although there were signs of disruption to furnishings throughout the apartment. The watch found in the possession of Mr. Barberio had been in a jewelry box when Mr. Bond left his home.
Conspiracy is defined as follows:
(a) Definition of conspiracy. -- A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. § 903.
The heart of the offense of conspiracy is an agreement to do an unlawful act. Commonwealth v. Anderson, 265 Pa. Super. 494, 402 A.2d 546 (1979). The agreement required for conspiracy can seldom be directly proved, nor need it be. Commonwealth v. Stephens, 231 Pa. Super. 481, 331 A.2d 719 (1974). A conspiracy may be inferentially established by showing the relationship, conduct or circumstances of the confederate which demonstrate a unity of purpose to accomplish an unlawful act. Commonwealth v. Cooper, 240 Pa. Super. 477, 362 A.2d 1041 (1976). In this case
[ 289 Pa. Super. Page 415]
appellant did not testify. Mr. Barberio, after he had entered a guilty plea, testified on behalf of the appellant. He stated that he and the appellant had been out drinking and were then walking over to Barberio's house. On the way Mr. Barberio had to go to the bathroom and since the door at 25 Vulcan Street was not locked, he entered the house and went to the second floor apartment to use the bathroom facilities. Neither appellant nor Mr. Barberio was acquainted with any of the occupants of the house. He further testified that he heard noises downstairs and that as he was running downstairs he encountered the appellant on about the third step from the bottom. At that point a police officer arrested the appellant. Although Mr. Barberio testified that he did not agree with the appellant to enter the building, the trier of fact may believe or disbelieve any or all of the evidence presented. Commonwealth v. Moyer, 232 Pa. Super. 120, 334 A.2d 764 (1975).
In this case the presence of the appellant in the property at 25 Vulcan Street with Mr. Barberio, after the apartment was ransacked and the occupant's watch removed, his possession of tools commonly considered burglary tools, his arrest by the police as he was coming down the steps, all support the appellant's conviction for criminal conspiracy beyond a reasonable doubt. See Commonwealth v. Ridgely, 243 Pa. Super. 397, 365 A.2d 1283 (1976).
Appellant contends that the court below did not state the reasons for its sentence. This is not fully accurate as the court did give the reasons for the sentence imposed.*fn1
[ 289 Pa. Super. Page 416]
We must determine, however, if the reasons articulated are sufficient.*fn2 It is now beyond question that the trial judge must state the reasons for the sentence he imposes. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wertz, 252 Pa. Super. 584, 384 A.2d 933 (1978); Commonwealth v. McQuaid, 273 Pa. Super. 600, 417 A.2d 1210 (1980). See also, the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, as amended, 18 Pa.C.S.A. § 1321. The decisions of our Court and the Supreme Court insist that the trial judge give increasing attention to explaining in detail ...