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filed: July 22, 1983.


No. 714 Philadelphia, 1982, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2546-2551 March Term, 1981.


Stanley P. Stern, Philadelphia, for appellant.

Robert Ciaffa, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Wieand and Hoffman, JJ.

Author: Wieand

[ 317 Pa. Super. Page 129]

Robert Ruffin was tried by jury and found guilty of murder in the second degree,*fn1 robbery,*fn2 theft by unlawful taking,*fn3 and criminal conspiracy.*fn4 The charges arose from Ruffin's participation in the robbery and shooting death of Willie Small in the latter's home in Philadelphia. This direct appeal followed the denial of post-trial motions and the imposition of sentence. Appellant contends that the evidence was insufficient to sustain the verdicts. He also contends, in a related argument, that the verdict was against the weight of the evidence because it failed to reflect the evidence that appellant had withdrawn from the criminal activity prior to the shooting.*fn5 These contentions lack merit. However, the imposition of multiple sentences was improper and requires correction.

[ 317 Pa. Super. Page 130]

In reviewing the sufficiency of the evidence, we are required to view the evidence, and all permissible inferences to be drawn therefrom, in the light most favorable to the Commonwealth, as verdict winner. The test is whether, taking as true the evidence most favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove appellant's guilt beyond a reasonable doubt. Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983); Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983); Commonwealth Page 130} v. Bachert, 499 Pa. 398, 402, 453 A.2d 931, 933 (1982); Commonwealth v. Scarborough, 313 Pa. Super. 521, 525, 460 A.2d 310, 312 (1983); Commonwealth v. Darden, 311 Pa. Super. 170, 172, 457 A.2d 549, 550 (1983); Commonwealth v. Barnes, 310 Pa. Super. 480, 482-83, 456 A.2d 1037, 1038 (1983).

On the evening of January 27, 1981, at or about 6:00 p.m., appellant and a co-conspirator, Robert Young, broke into the victim's home through a rear door. They entered the living room, where Carl Hankins, the fourteen year old stepson of Willie Small, was watching his infant half-brother.*fn6 Young went upstairs, leaving appellant in the living room. Shortly thereafter, Young returned to summon appellant, and the two went upstairs together. Then, Hankins' sister, Roslyn, came running down the stairs and announced to Carl that two men were pointing a gun at their father. Hankins went upstairs to the master bedroom, where he saw Young holding a gun pointed at his father's chest while Young rummaged through his father's belongings. Appellant, who was seated on the bed next to the victim, ordered Hankins to go downstairs. Upon his father's request, Hankins complied. He then ran across an alley behind the house to his uncle's house from where his uncle called the police. While still in his uncle's kitchen, Hankins heard three shots. He ran to a nearby corner, from where he observed Young and appellant run from the house and past him, each carrying a part of the stereo system which theretofore had been in the family's living room. Hankins returned to his house and found his father unconscious and injured on the living room floor. Small died of multiple gunshot wounds to the head.

The totality of the Commonwealth's evidence was sufficient to establish that appellant had been part of a conspiracy to rob Small. In Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982), the Supreme Court stated:

[ 317 Pa. Super. Page 131]

"It is well established that a common understanding or agreement is the heart of every conspiracy. Commonwealth v. Waters, 463 Pa. 465, 471, 345 A.2d 613, 616 (1975). As stated, however, in Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937), 'An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.' A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co-conspirators are competent as proof that a criminal confederation has in fact been formed. Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973). See also Commonwealth v. Mobley, 467 Pa. 460, 463, 359 A.2d 367, 368 (1976)."

Id., 499 Pa. at 395, 453 A.2d at 929-930. See also: Commonwealth v. Lamb, 309 Pa. Super. 415, 429, 455 A.2d 678, 685-686 (1983); Commonwealth v. Davenport, 307 Pa. Super. 102, 106-08, 452 A.2d 1058, 1060-1061 (1982); Commonwealth v. Plusquellic, 303 Pa. Super. 1, 4-5, 449 A.2d 47, 49-50 (1982); Commonwealth v. Volk, 298 Pa. Super. 294, 300-301, 444 A.2d 1182, 1185 (1982). In the instant case, the evidence showed that Young and appellant had acted in concert when they broke into Small's home and engaged in criminal activity. Not only had appellant been present, but he had instructed Hankins to go downstairs and had assisted in carrying away the stereo set after the shooting. See: Commonwealth v. Scarborough, supra.

Although there was no direct evidence that appellant had shot Willie Small, the evidence did establish that he had been an accomplice in the underlying robbery and theft.*fn7

[ 317 Pa. Super. Page 13218]

Pa.C.S.A. § 306(c). Thus, he was vicariously liable for Young's criminal acts in furtherance of the common design. Commonwealth v. Tate, 485 Pa. 180, 185, 401 A.2d 353, 355 (1979); Commonwealth v. Roux, 465 Pa. 482, 490, 350 A.2d 867, 871 (1976); Commonwealth v. Bryant, 461 Pa. 309, 312-313, 336 A.2d 300, 301 (1975); Commonwealth v. Sampson, 445 Pa. 558, 563, 285 A.2d 480, 483 (1971); Commonwealth v. Scarborough, supra, 313 Pa. Superior Ct. at 525, 460 A.2d at 312; Commonwealth v. Minnis, 312 Pa. Super. 53, 55, 458 A.2d 231, 233 (1983); Commonwealth v. Darden, supra, 311 Pa. Superior Ct. at 172, 457 A.2d at 550; Commonwealth v. Davenport, supra, 307 Pa. Superior Ct. at 110, 452 A.2d at 1062; Commonwealth v. Plusquellic, supra 303 Pa. Super. at 5, 449 A.2d at 50; Commonwealth v. Cofer, 257 Pa. Super. 528, 531-532, 390 A.2d 1363, 1365 (1978). See also: Commonwealth v. Wilson, 493 Pa. 332, 333, 426 A.2d 575, 576 (1981); Commonwealth v. Stafford, 451 Pa. 95, 97 n. 1, 301 A.2d 600, 602 n. 1 (1973).

Appellant testified that he had been Small's friend and had made frequent purchases of marijuana from him. He contended that he had brought Young to Small at Young's insistence to buy marijuana and had no idea that Young intended to rob Small. He also contended that he had tried to stop Young and had left before the shooting. The jury, however, could believe all, part or none of appellant's explanation. Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1113 (1981); Commonwealth v. Newman, 310 Pa. Super. 493, 496, 456 A.2d 1044, 1045 (1983); Commonwealth v. Wilcox, 310 Pa. Super. 331, 335, 456 A.2d 637, 639 (1983). The credibility of the testimony was within the jury's province; and it was for the jury to resolve conflicts arising because of contradictory testimony. See: Commonwealth v. Guest, supra, 500 Pa. at 396, 456 A.2d at 1347; Commonwealth v. Brockington,

[ 317 Pa. Super. Page 133500]

Pa. 216, 219-20, 455 A.2d 627, 628 (1983); Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980); Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Battle, 289 Pa. Super. 369, 375, 433 A.2d 496, 498 (1981).

Appellant argues also that his testimony at trial established the defense of withdrawal and repudiation, and that the jury's rejection of this defense resulted in a verdict against the weight of the evidence. Whether a verdict is contrary to the weight of the evidence is a matter committed to the sound discretion of the trial court. A new trial will be granted on this basis only where the record shows that the verdict was so contrary to the evidence as to shock one's sense of justice and make a new trial imperative in the interests of obtaining justice. See: Commonwealth v. Laing, 310 Pa. Super. 105, 110, 456 A.2d 204, 207 (1983); Commonwealth v. Miller, 303 Pa. Super. 504, 507, 450 A.2d 40, 42 (1982); Commonwealth v. Barnhart, 290 Pa. Super. 182, 185, 434 A.2d 191, 192 (1981).

In order to justify a finding of withdrawal or abandonment, which is set forth in 18 Pa.C.S.A. § 306(f)(3)(i) and (ii),*fn8 the actor must have abandoned the scheme appreciably before the homicide occurs, and he must have communicated his intention to his co-conspirator so that he also had an opportunity to abandon the scheme. See: Commonwealth v. Roux, supra, 465 Pa. at 489-490, 350 A.2d at 871; Commonwealth v. Spriggs, 463 Pa. 375, 380-381, 344 A.2d 880, 883 (1975); Commonwealth v. Sampson, supra 445

[ 317 Pa. Super. Page ]

Page 134the second degree and conspiracy. See: Commonwealth v. Wilson, 312 Pa. Super. 77, 82, 458 A.2d 244, 246 (1983); Commonwealth v. Moore, supra 300 Pa. Super. at 494, 446 A.2d at 963. See also: Commonwealth v. Wilcox, supra, 310 Pa. Superior Ct. at 337-38, 456 A.2d at 640-641.

The judgments of sentence for murder in the second degree and conspiracy are affirmed. The separate sentences for theft and robbery are vacated.

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