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COMMONWEALTH PENNSYLVANIA v. GWENDOLYN MARIE SWANK KERSTEN (09/21/84)

filed: September 21, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GWENDOLYN MARIE SWANK KERSTEN, A/K/A GWENDOLYN MARIE MCFADDEN, APPELLANT



No. 00702 PITTSBURGH, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Fayette County, Nos. 73 & 73 1/2 of 1979.

COUNSEL

Anne N. John, Uniontown, for appellant.

John M. Zeglen, Assistant District Attorney, Uniontown, for Commonwealth, appellee.

Cavanaugh, Popovich and Hester, JJ.

Author: Hester

[ 333 Pa. Super. Page 348]

Appellant, Gwendolyn Marie Kersten, also known as Gwendolyn Marie McFadden, on January 18, 1979, was charged with criminal homicide and criminal conspiracy stemming from the death of her son, William Swank. The jury, on July 16, 1979, found appellant guilty of third degree murder and criminal conspiracy. Post-verdict motions were filed and denied. On February 15, 1980, appellant was sentenced to undergo imprisonment for not less than ten years nor more than twenty years for the third degree murder conviction. For the criminal conspiracy conviction, appellant was sentenced to undergo imprisonment for not less than five years nor more than ten years. These sentences were imposed consecutively. Defense counsel did not file a Notice of Appeal from the judgment of sentence despite appellant's request.

Appellant filed a petition for post conviction relief alleging counsel's ineffectiveness for not appealing her conviction. Appellant's counsel was found to be ineffective; consequently, this appeal nunc pro tunc from the judgment of sentence was allowed. We affirm.

[ 333 Pa. Super. Page 349]

Appellant's first argument is that the criminal conspiracy verdict was against the sufficiency of the evidence.*fn1

In Commonwealth v. Anderson, 265 Pa. Super. 494, 501, 402 A.2d 546, 549 (1979), the Superior Court said:

Among the circumstances relevant, but not sufficient by themselves, to prove a corrupt confederation are (1) association between alleged conspirators, (citations omitted); (2) knowledge of the commission of the crime, (citations omitted); (3) presence at the scene of the crime, (citations omitted); and (4) in some situations, participation in the object of the conspiracy, (citations omitted). However, while such circumstances are insufficient standing alone, they may furnish a web of evidence linking an accused to the alleged conspiracy beyond a reasonable doubt "when viewed in conjunction with each other and in the context in which they occurred." Commonwealth v. Clark, 256 Pa. Super. 97, 103, 389 A.2d 619, 621 (1978) (citations omitted).

However, such evidence must be of a volume and quality sufficient to overcome the presumption of innocence and satisfy the factfinder of a defendant's guilt beyond a reasonable doubt. A conviction of conspiracy cannot be based on mere suspicion or conjecture. Commonwealth v. DiEmidio, 410 Pa. 172, 176, 188 A.2d 750, 752 (1963).

Under the attendant circumstances, the testimony of the co-conspirator, Lloyd Gilbert McFadden, established criminal conspiracy. It has long been the law of Pennsylvania that the uncorroborated testimony of a co-conspirator is sufficient to establish all elements of criminal conspiracy. Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981).

[ 333 Pa. Super. Page 350]

The test to be applied is whether the evidence and all reasonable inferences therefrom are sufficient to support a finding by the jury that the defendant was guilty beyond a reasonable doubt. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979). The testimony of the co-conspirator, Gilbert McFadden, was sufficient to establish all elements of the criminal conspiracy against appellant.

Appellant's next argument is that the co-conspirator's hearsay testimony was improperly admitted.

To lay a foundation for the co-conspirator exception to the hearsay rule, the Commonwealth must prove that: (1) a conspiracy existed between declarant and the person against whom the evidence is offered and (2) the statement sought to be admitted was made during the course of the conspiracy. In addition, there must be evidence other than the statement of the co-conspirator to ...


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