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filed: July 1, 1983.


No. 3273 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 3779-80.


Frank H. Morgan, Jr., Ardmore, for appellant.

Joseph A. Smyth, District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.

Wieand, McEwen and Montgomery, JJ.

Author: Wieand

[ 315 Pa. Super. Page 430]

Mark Cassidy was tried by jury and convicted of third degree murder, recklessly endangering another person and criminal conspiracy in connection with the shooting death of Vincent Esposito. His post verdict motions were denied, and concurrent terms of imprisonment were imposed for third degree murder and conspiracy.*fn1 In this direct appeal from the judgment of sentence, Cassidy contends: (1) that the evidence was insufficient to sustain the convictions; (2)

[ 315 Pa. Super. Page 431]

    that his confession was involuntary and should have been suppressed; (3) that the trial court erred in permitting bullets, properly received in evidence, to be taken into the jury deliberation room; and (4) that alleged hearsay testimony was improperly received. There is no merit in any of these contentions. The opinion of the learned trial judge, The Honorable Anthony J. Scirica, has ably and carefully analyzed the first three of appellant's claims, and there is no need to add thereto or repeat his analysis here. Our discussion, therefore, is confined to appellant's contention that extra-judicial statements were improperly received in evidence.

Appellant contends specifically that the trial court erred in allowing Commonwealth witnesses to testify about a conversation which took place on the afternoon of the shooting. The conversation, to which appellant, his co-conspirators and the witnesses were privy, centered upon the fact that the victim had been harassing one of the co-conspirators. The witnesses testified that during the course of the conversation, the alleged conspirators had spoken of taking retaliatory action against the victim.*fn2 This, appellant

[ 315 Pa. Super. Page 432]

    argues, took place prior to the commencement of the alleged conspiracy and, therefore, constituted inadmissible

[ 315 Pa. Super. Page 433]

    hearsay. The trial court agreed that the evidence was hearsay but held it admissible under the exception to the hearsay rule which permits statements by one co-conspirator during the continuation of a conspiracy. Although we are unable to agree with the trial court's reasons for receiving this evidence, it seems clear that the evidence was admissible. This Court will affirm the trial court's decision if the result is correct on any ground, without regard to the grounds on which the trial court relied. Commonwealth v. Shaw, 494 Pa. 364, 368 n. 1, 431 A.2d 897, 899 n. 1 (1981); Commonwealth v. Reidenbaugh, 282 Pa. Super. 300, 309-310, 422 A.2d 1126, 1131 (1980); Commonwealth v. Hinton, 269 Pa. Super. 43, 48-49, 409 A.2d 54, 57 (1979).

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Darden, 311 Pa. Super. 170, 175, 457 A.2d 549, 551 (1983); Commonwealth v. Perry, 279 Pa. Super. 32, 37-38, 420 A.2d 729, 732 (1980); Commonwealth v. Rhodes, 272 Pa. Super. 546, 554, 416 A.2d 1031, 1035 (1979); Commonwealth v. Strunk, 256 Pa. Super. 213, 215, 389 A.2d 1089, 1090 (1978). When an extra-judicial statement is offered for a purpose apart from proving the truth of its contents, it is not hearsay and is not excluded under the hearsay rule. Commonwealth v. Darden, supra. See: Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035 (1980) (out-of-court statement offered to explain course of conduct is not hearsay); Commonwealth v. Perry, supra 279 Pa. Super. at 38-39, 420 A.2d at 732.

In the instant case, the out-of-court statements were not hearsay. They were not offered by the Commonwealth to prove the truth of the matters asserted, but rather as circumstantial evidence of the formation and existence of a conspiracy. "[O]ut-of-court statements of conspirators are often admitted as circumstantial evidence of their participation in a conspiracy." Binder, The Hearsay Handbook ยง 5.2 (1982 Supplement). See also: United States v. Bobo, 586 F.2d 355, 371-372 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979). The statements presented by the Commonwealth in this case demonstrated

[ 315 Pa. Super. Page 434]

    the circumstances under which the participants in the shooting came together and formed a conspiracy or unlawful confederation. "It was competent for the Commonwealth to show how the various defendants became associated, and it was proper to show the background of the arrangement which resulted in this prosecution." Commonwealth v. Berman, 119 Pa. Super. 315, 325-326, 181 A. 244, 248 (1935). See also: Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

Because testimony of the inculpatory conversation between the alleged conspirators was offered not for the truth of the matters asserted but to establish the formation of a conspiracy, it was properly received.

The judgment of sentence is affirmed.

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