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COMMONWEALTH PENNSYLVANIA v. ROY BROWN (02/13/86)

filed: February 13, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROY BROWN, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. 8312163A/8312290A.

COUNSEL

Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.

Kemal A. Mercli, Assistant District Attorney, Pittsburgh, for Com., appellee.

Wickersham, Wieand and Beck, JJ.

Author: Wieand

[ 351 Pa. Super. Page 121]

On May 12, 1983, a neighbor observed a man carrying a television set from the home of Mary and Jack Johnson in Penn Hills, Allegheny County. He placed the television in a car in front of the Johnson home. The neighbor ran from his home, saw another man sitting behind the wheel of the car, and recorded the registration number as the vehicle was driven away. The neighbor subsequently identified

[ 351 Pa. Super. Page 122]

Roy Brown, the appellant, as the driver of the car. After the Commonwealth had proved these facts, a jury found Brown guilty of theft and conspiracy.

The same jury, in a consolidated trial, found Brown guilty of criminal trespass and theft in connection with the removal of a television set and lace tablecloth from the home of Catherine Murtland in North Braddock, Allegheny County, on September 7, 1983. Brown had been observed by two neighbors who confronted him as he carried the television set and lace tablecloth from the Murtland home.

Post-trial motions were denied, and Brown was sentenced to two consecutive terms of imprisonment for an aggregate period of not less than four nor more than eight years. On direct appeal, he contends: (1) that the evidence was insufficient to show a conspiracy to steal the Johnson television; (2) that he was deprived of a speedy trial under Pa.R.Crim.P. 1100; (3) that the trial court erred in denying a defense request to continue the trial; (4) that the trial court erred in denying a defense request for separate trials; (5) that the trial court erred in denying a defense motion for a mistrial; (6) that the trial judge's frequent interjections and adverse comments deprived him of a fair trial; and (7) that sentencing counsel was ineffective for failing to require the court to place on the record the reasons for the sentences. After careful review, we conclude that new trials are necessary.

A conspiracy need not be established by direct evidence. Commonwealth v. Davenport, 307 Pa. Super. 102, 106, 452 A.2d 1058, 1060 (1982). A corrupt agreement to commit a criminal act may be shown by circumstantial evidence. Commonwealth v. Hurlbert, 329 Pa. Super. 119, 125, 477 A.2d 1382, 1385 (1984). See also: Commonwealth v. Mills, 332 Pa. Super. 75, 480 A.2d 1192 (1984). "The existence of a common agreement may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties." Commonwealth v. Gordon, 329 Pa. Super. 42, 52, 477 A.2d 1342, 1347 (1984)

[ 351 Pa. Super. Page 123]

(citations omitted). See also: Commonwealth v. Hart, 348 Pa. Super. 117, 501 A.2d 675 (1985). "Where the conduct of the parties indicates that they were acting together with a common and corrupt purpose . . . the jury may properly infer that a conspiracy did exist." Commonwealth v. Esposito, 236 Pa. Super. 127, 130, 344 A.2d 655, 657 (1975), quoting Commonwealth v. Armbruster, 225 Pa. Super. 415, 420, 311 A.2d 672, 674 (1973).

The evidence in this case was sufficient to enable a jury to infer that appellant, on May 12, 1983, had agreed to promote, facilitate and encourage the theft of a television set from the Johnson home in Penn Hills. Appellant had waited in a car while his companion had entered the Johnson home and removed the television. After the companion had returned and had placed the television set in the car, appellant sped away. An ...


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