No. 1873 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division at No. 80-11-626-631.
Martin L. Trichon, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ. Johnson, J., files a concurring opinion.
[ 315 Pa. Super. Page 285]
After a bench trial before Judge Goldman of the Court of Common Pleas of Philadelphia County, the appellant, Thaddeus Ford, was adjudged guilty of Aggravated Assault,*fn1 Attempted Murder,*fn2 Criminal Conspiracy,*fn3 Recklessly Endangering Another Person,*fn4 Carrying a Firearm on a Public Street or Public Property in Philadelphia,*fn5 Carrying a Firearm Without a License*fn6 and Possession of an Instrument of
[ 315 Pa. Super. Page 286]
Crime.*fn7 Following the denial of post-trial motions, appellant was sentenced: 1) five to ten years for Criminal Conspiracy; 2) two and one-half to five years for Possession of an Instrument of Crime, which was to run concurrently with the Conspiracy term; 3) two and one-half to five years for Carrying a Firearm Without a License, which was to run consecutively to the Possession of an Instrument of Crime sentence but concurrently with the Conspiracy sentence; and 4) five to ten years for Attempted Murder, which was also ordered to run consecutively to the Conspiracy sentence. No sentence was imposed for the convictions of Aggravated Assault and Recklessly Endangering Another Person. This appeal followed. We vacate and remand for proceedings consistent with this Opinion.
The facts, viewed in a light most favorable to the verdict winner, the Commonwealth here, Commonwealth v. Young, 446 Pa. 122, 285 A.2d 499 (1971), consist of the following: At approximately 8:00 p.m. on the 27th of September, 1980, Kevin Mason summoned Lawrence Brown to the home of Leon Jones in the Point Breeze section of South Philadelphia. Mr. Brown made his way to the Jones' residence on his ten-speed bicycle. En route, Brown met the appellant, who was in Mason's company, and the trio entered the house together. Once there, Mason borrowed Brown's bicycle and returned fifteen minutes later with Alphonso Beecher.
When Beecher arrived, appellant removed a .32 caliber, blue steel revolver from the back of his pants. He then handed it to Beecher and remarked, "I can't take this bust." The appellant could not afford "to get locked up" because possession of a firearm would constitute a violation of his existing probation. As a result, Beecher took the weapon, which Brown recognized as belonging to Mason, and placed it in his own pants. (N.T. 11-15, 23, 25-27, 29-30).
Mason, Beecher, Brown, Jones and appellant left the house as a group and walked about three blocks to a park located on 23rd Street, between Reed and Dickinson Streets.
[ 315 Pa. Super. Page 287]
When the group reached the park, appellant, Mason and Jones separated from Brown and Beecher, both of whom continued to walk for slightly less than half a block. At this point, according to Brown, appellant screamed, "Go ahead. Now." Within the span of a minute, Beecher fired six shots at Brown at point-blank range, hitting him four times in the back. Beecher ran from the scene, while appellant, Mason and Jones walked away.
The shooting that left both of Brown's legs totally paralyzed occurred about twenty minutes after the appellant had handed the .32 caliber weapon to Beecher; the gun Beecher used was the same one that changed possession in Jones' house. (N.T. 17-19, 21, 28, 31-35, 39-41 & 44)
To rebut the Commonwealth's case-in-chief, the appellant produced two witnesses (Patricia Johnson and Sharon Washington) who admitted to conversing with the appellant at the scene, but denied hearing him make any statement even resembling the phrase, "Go ahead. Now" immediately preceding the shooting in question. (N.T. 49-50, 53 & 59)
The trier of fact, after hearing and weighing all of the evidence, found the appellant guilty as charged and sentenced him to the terms of imprisonment recounted supra.
On appeal, appellant challenges the sufficiency of the evidence to sustain the verdict and the propriety of "the sentence . . . for three (3) different inchoate crimes . . . pursuant to 18 Pa.C.S. § 906." (Appellant's Brief at 3)
Since we find that the evidence presented was sufficient to establish appellant's guilt as to some, but not all, of the offenses charged, we will deal with each offense separately for ease of discussion.
To start with, appellant asserts that the evidence produced at trial was insufficient to prove beyond a reasonable doubt that a conspiracy existed. Thus, he contends that he was improperly convicted of Attempted Murder, Aggravated Assault and Recklessly Endangering Another Person under the rubric of a conspirator of Alphonso Beecher and the others to cause injury to the victim, Mr. Brown.
[ 315 Pa. Super. Page 288]
On the question regarding the quantum of proof necessary to establish the existence of a conspiratorial agreement, this Court has stated:
The essence of conspiracy is a common understanding or agreement. Commonwealth v. Fontana, 265 Pa. Super. 387, 401 A.2d 1361 (1979). However, the Commonwealth is not required to establish the existence of a conspiracy by direct proof or an explicit or formal agreement. Id. "Indeed, direct proof of an explicit or formal agreement to commit a crime can seldom, if ever, be supplied and it need not be for 'it is established law in this Commonwealth that a conspiracy may be proved by circumstantial evidence as well as by direct evidence.'" Commonwealth v. Roux, 465 Pa. 482, 488, 350 A.2d 867, 870 (1976). The nature of the crime usually makes it susceptible of no other proof than by circumstantial evidence. Commonwealth v. Evans, 190 Pa. Super. 179, 154 A.2d 57 (1959), aff'd 399 Pa. 387, 160 A.2d 407 (1960), cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194, reh. denied, 364 U.S. 939, 81 S.Ct. 377, 5 L.Ed.2d 371. To assist the finder of fact in determining whether a corrupt confederation is present, the relationship and conduct of the parties and the circumstances surrounding their activities can be examined to deduce, inferentially, if a conspiracy exists. Commonwealth v. Fontana, supra. (Emphasis added)
Commonwealth v. Tumminello, 292 Pa. Super. 381, 386, 437 A.2d 435, 437-438 (1981).
Additionally, notwithstanding the fact that we are dealing with a situation in which the complained of assault was inflicted by someone other than the appellant, the law in Pennsylvania is settled that each conspirator is criminally responsible for the action of his co-conspirator, provided it is accomplished in furtherance of the common design, "even though one does not perform the immediate act [complained of]." ...