No. 1049 Pittsburgh 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Venango County, Criminal Division, at S.D. No. 406-1979.
Joseph Ronald Kushner, Oil City, for appellant.
William G. Martin, Assistant District Attorney, Franklin, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ. Johnson, J., dissents.
[ 312 Pa. Super. Page 87]
Appellant contends that the evidence is insufficient to sustain his conviction for conspiracy to commit theft by deception. Because the evidence fails to establish appellant's knowledge of any criminal purpose, we reverse the judgment of sentence and order appellant discharged.
In reviewing the sufficiency of the evidence, we must determine, upon viewing the evidence in the light most favorable to the Commonwealth as verdict winner, whether a factfinder could reasonably have found all elements of a crime beyond a reasonable doubt. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979). So viewed the facts are as follows:
On July 30, 1979, appellant agreed to accompany Steve Eakin to Pittsburgh to pick up inspection stickers. Appellant phoned Nelson Cunningham, a mechanic at Weithrup Erection Co., and he and Eakin stopped there around noon. Cunningham was working under the hood of a 1974 Cadillac, and asked appellant and Eakin if they knew anyone interested in buying it. Cunningham had previously agreed with the car's owner to dispose of it as if it were stolen so
[ 312 Pa. Super. Page 88]
that the owner could file a false insurance claim and Cunningham could get spare parts. Eakin and appellant then left for Pittsburgh. That night, appellant phoned Cunningham and talked for four minutes.
The following morning, July 31, Eakin asked appellant to help him drive the Cadillac to a potential buyer. Around noon, at Weithrup, Cunningham gave Eakin the keys to the Cadillac, and Eakin drove it away while appellant followed in Eakin's car. Several employees saw them arrive soon after at Heller's auto-body shop in Seneca. Eakin and Heller, soon joined by appellant, stood behind the Cadillac. Eakin delivered the book of inspection stickers to Heller. Eakin told Heller that he could make a deal on the Cadillac but that Heller would have to dismantle it and make sure it was not put back on the road. Eakin also requested fifteen of the inspection stickers in payment. The three arranged to meet later that afternoon at Heller's garage in Rockland. At two p.m., when only Heller was present at the Rockland garage, Eakin drove up in the Cadillac with appellant following in Eakin's car. While Eakin, Heller, and appellant talked outside for a few minutes, appellant said that if the Cadillac were dismantled he could find a buyer for the tires and wheels. Eakin then drove the Cadillac into the garage. Appellant told Heller that, as part payment for the car, he wanted a trailer axle from a pile that was lying nearby. Eakin, as he got out of the car, wiped off the steering wheel, door handle, and keys. Appellant soon left alone. Eakin and Heller returned to Heller's Seneca shop, and Eakin said he wanted $300 and fifteen inspection stickers as the price for the Cadillac. Heller said he could not pay until after Friday, August 4. After Heller had gone, appellant returned in Eakin's car to pick up Eakin from the Seneca shop.
Over the next few days, appellant accompanied Eakin and Eakin's father on an unrelated trip. Cunningham, on August 4, told the car's owner, that the Cadillac was "long gone." On Saturday, August 5, the day after their ...