Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 513-84.
Howard H. Brown, Chester, for appellant.
Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.
Wickersham, Wieand and Popovich, JJ.
[ 353 Pa. Super. Page 180]
On the evening of January 21, 1984, John Maletsky stopped his automobile, in which his four year old daughter was a passenger, for a stoplight at the intersection of Kerlin Street and the exit ramp from I-95 in the City of Chester. While the vehicle was stopped at the light, two black males approached, shot Maletsky, pulled him from the car and shot him again. Dean Campbell was one of the assailants. His brother Michael, who is the present appellant, entered the Maletsky vehicle and drove away with the child in the front seat. After driving approximately two blocks, the vehicle became immobilized by ice on the road surface. Mrs. Maletsky, who had been following her husband in another car, observed her husband but did not see either her husband's car or her daughter. Maletsky said "they took my child" and pointed in the direction in which the car had been driven. At that point, Dean Campbell grabbed Mrs. Maletsky's purse, pulled a gun and escaped. Mrs. Maletsky ran to her husband's immobilized vehicle. As she approached, she observed Michael Campbell, the appellant, trying to move the car from the ice. He was then wearing a red cap. He fled when Mrs. Maletsky arrived at the car. However, his fingerprints were found on the car. John Maletsky later died as a result of gunshot wounds.
Michael Campbell was tried by jury and was found guilty of robbery, murder of the second degree, kidnapping, criminal conspiracy and various lesser offenses arising from the same incident. Post-verdict motions were denied, and sentence was imposed. On direct appeal, Michael Campbell contends (1) that the evidence was insufficient to sustain convictions for murder, conspiracy and kidnapping and (2) that the trial court erred in excluding a statement made by
[ 353 Pa. Super. Page 181]
his brother, Dean, which exculpated appellant with respect to the shooting.
In reviewing the sufficiency of the evidence, we view the evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Taylor, 324 Pa. Super. 420, 424, 471 A.2d 1228, 1229 (1984).
"[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)." Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 929-930 (1982). See also: Commonwealth v. Robinson, 351 Pa. Super. 309, 316, 505 A.2d 997, 1000 (1986); Commonwealth v. Brown, 351 Pa. Super. 119, 122-123, 505 A.2d 295, 296 (1986); Commonwealth v. Hart, 348 Pa. Super. 117, 124, 501 A.2d 675, 678 (1985); Commonwealth v. Mills, 332 Pa. Super. 75, 81, 480 A.2d 1192, 1195 (1984); Commonwealth v. Hurlbert, 329 Pa. Super. 119, 125-126, 477 A.2d 1382, 1385 (1984); Commonwealth v. Gordon, 329 Pa. Super. 42, 52, 477 A.2d 1342, 1347 (1984).
In addition to evidence of the conduct of the participants at the time when Maletsky was pulled from his car and shot, the Commonwealth showed that immediately prior thereto, ...