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.
[ 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that the verdict was against the weight of the evidence because it failed to reflect the evidence that appellant had withdrawn from the criminal activity prior to the shooting.*fn5 These contentions lack merit.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 ...