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COMMONWEALTH PENNSYLVANIA v. ERIC G. MCINTYRE (06/11/82)

SUPERIOR COURT OF PENNSYLVANIA


June 11, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC G. MCINTYRE, APPELLANT

No. 2670 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, Nos. 4868, 5374 of 1979.

Before Beck, Watkins, and Hoffman, JJ.

Per Curiam:

Judgment of sentence affirmed.

MEMORANDUM

In a jury trial, appellant was found guilty of theft, criminal conspiracy, possession of an instrument of crime generally, and possession of a weapon. Following the denial of his post-trial motions, appellant was sentenced to concurrent three-to-six year terms of imprisonment for theft and criminal conspiracy, fined one-hundred dollars for each of those charges, but sentence was suspended on the remaining charges. Finding no merit in any of appellant's contentions, we affirm.

"When an appellant challenges the sufficiency of the evidence supporting his conviction, we must accept as true all the evidence upon which the finder of fact could properly have reached its verdict and give the Commonwealth the benefit of all reasonable inferences arising from that evidence." Commonwealth v. Lewis, 276 Pa. Superior Ct. 451, , 419 A.2d 554, 546 (1980) (citation omitted). So viewed, the facts are as follows: On October 19, 1979, at approximately 12:30 a.m., two armed black men wearing dark ski masks robbed two employees outside a convenience store in Prosect Park. One of the men took a pocketbook containing about seventy-four dollars from the female victim. The robbers then retreated over a hill in the direction of Madison and Fifth Avenues. The victims immediately notified the police, described the robbers' weapons, and noted that one of them had been wearing a dark red or maroon sweatshirt. The police promptly broadcast this information over their radio. The broadcast was intercepted by a man who had been scavenging for scrap metal in the vacinity of the robbery. The man sought out a policeman and told him that he had seen a shiny, black, 1967 or 1968 Cadillac parked between two houses on Madison Avenue (less than a block from the robbery); that a medium-height negro male wearing all dark clothing had been nervously walking around the car and checking its tires; and that, shortly after the broadcast, the car had gone. The police immediately supplemented the earlier broadcast, indicating that three men may have been involved and that they may have been driving a shiny, black Cadillac. At 1:45 a.m., a Ridley Township policeman observed, about two miles from the scene, a similar car being driven at an unusually slow speed by a black man wearing a red shirt. One of the two passengers was shuffling around in the back seat and was looking out the rear window periodically. After following the car for several blocks and requesting assistance, the officer stopped the car and asked the driver for identification. The officer then noticed a bullet on the floor near the accelerator. As the driver alighted from the vehicle upon the officer's direction, the officer noticed that the driver had had a holster on his left hip. Other officers subsequently found in the car two guns and two ski masks matching those described by the victims, a quantity of ammunition, and approximately seventy-four dollars in the same denominations as the stolen money.*fn1 Both victims identified the robbers' clothes and testified that two of the three men were of the same build as the robbers. The scavenger identified the car as the one he had seen minutes before the police broadcast. Although no one identified appellant as the man seen walking around the car, the evidence at trial established that when the car was stopped, appellant was sitting in the right front seat, and was wearing a brown leather jacket; the money was found at his feet; and one of the guns and some of the ammunition had been stuffed into the front seat.*fn2

Appellant correctly notes that his mere presence in the car is insufficient to convict him of possessing contraband secreted there. See, e.g., Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). "It is also true, however, that the totality of the circumstances may point clearly toward a defendant's guilt." Commonwealth v. Lewis, supra at , 419 A.2d at 547 (citations omitted). A conviction may be sustained by circumstantial evidence so long as the evidence includes the defendant in a group who could be linked to the crime, while excluding others, and the combination of evidence links the defendant to the crime beyond a reasonable doubt. Commonwealth v. Turner, Pa. Superior Ct. , , 410 A.2d 895, 897-98 (1979). Appellant argues that his connection to the crime is too attenuated because of conflicting testimony about the color of his jacket and its discrepancy with the scavenger's description of the "all dark" clothes worn by the man he had seen. We disagree. Any inconsistency in the testimony concerning the darkness of appellant's jacket was for the jury to resolve. Moreover, the jury had the opportunity to determine whether appellant matched the description of the man seen by the scavenger before the radio broadcast. We are therefore satisfied that the evidence, together with the reasonable inferences, was sufficient to establish that appellant was guarding the robbers' get-away car, that he knew of the weapons and money, and jointly exercised control over them with his co-defendants. Cf. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). Thus, the evidence was sufficient to establish that appellant was guilty of criminal conspiracy, possession of an instrument of crime generally, possession of a weapon, and theft. See 18 Pa.C.S.A. §§ 306, 903, 907(a), (b), and 3921.

Appellant contends also that he could not be convicted of criminal conspiracy, possession of an instrument of crime generally, and possession of a weapon because section 906 of the Crimes Code, 18 Pa.C.S.A. § 906, prohibits multiple convictions of inchoate crimes "for conduct designed to commit or to culminate in the commission of the same crime." Assuming, arguendo, that the charges all arose out of the same criminal episode, but cf. Commonwealth v. Zappacosta, Pa. Superior Ct. , , 401 A.2d 805, 808 (1979) (conspiracy to commit burglary and possessing instrument of crime did not merge under section 906 because burglary had already been completed and possession charge related to conduct after burglary), appellant is, nevertheless, not entitled to relief under section 906. Section 906 does not prohibit multiple adjudications of guilt; rather, it prohibits multiple sentences for inchoate crimes. Commonwealth v. Jackson, 280 Pa. Superior Ct. 522, , 421 A.2d 845, 846 (1980). The lower court imposed a prison sentence for criminal conspiracy, but "suspended" sentence for the other inchoate crimes. In its opinion, the lower court recognized that it was powerless to impose a sentence for those offenses. Cf. 42 Pa.C.S.A. § 9723 (determination of guilt without further penalty); Commonwealth v. Rubright, 489 Pa. 356, , 414 A.2d 106, 109 (1980) (plurality opinion). Accordingly, we hold that appellant's sentence was consistent with the mandate of section 906 that he be convicted of but one inchoate crime. Cf. Commonwealth v. Haines, Pa. Superior Ct. , , A.2d , , slip op. at 7-8 (J. 1842/1981, filed , 1982).*fn3

Judgment of sentence affirmed.


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