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filed: October 27, 1986.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 473-477 March Term, 1981.


Barry L. Adelman, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Beck and Johnson, JJ. Johnson, J., files a concurring opinion.

Author: Wieand

[ 358 Pa. Super. Page 100]

John Ferguson was tried non-jury and was found guilty of robbery*fn1 and criminal conspiracy*fn2 in connection with the armed robbery of a gasoline station in Philadelphia. Post-trial motions were denied, and sentence was imposed. On direct appeal, Ferguson contends that the evidence was insufficient to sustain the convictions for robbery and conspiracy and argues that trial counsel was ineffective. We perceive no merit in these contentions and affirm the judgment of sentence.

In reviewing the sufficiency of the evidence,*fn3 we view the evidence presented and all reasonable inferences

[ 358 Pa. Super. Page 101]

    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. Campbell, 353 Pa. Super. 178, 179, 509 A.2d 394, 395 (1986); Commonwealth v. Taylor, 324 Pa. Super. 420, 424, 471 A.2d 1228, 1229 (1984). See also: Commonwealth v. Merrick, 338 Pa. Super. 495, 488 A.2d 1 (1985); Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984).

On the evening of December 31, 1980, appellant and three other persons drove to 48th and Chestnut Streets in Philadelphia, where they parked near an Arco service station. Appellant remained in the automobile with its motor running while the others approached the service station. There, they robbed the attendant at gunpoint and locked him in the bathroom. The men thereupon returned to the car where Ferguson was waiting. Appellant drove to the home of his sister, where the four men divided the money taken from the service station.

This evidence was sufficient to support a finding that appellant had agreed to promote, facilitate and encourage the robbery of the Arco service station and that he had participated actively in committing the robbery. Indeed, it had been he who initiated the criminal activity by suggesting that "he knew where to get some money." Ferguson drove the car, parked it a short distance from the gasoline station, and remained in the automobile with the engine running while his co-conspirators held up the station attendant. "[T]he driver of a 'get away' car can be found guilty . . . if it is reasonable to infer that he was aware of the

[ 358 Pa. Super. Page 102]

    actual perpetrator's intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime." Commonwealth v. Wright, 235 Pa. Super. 601, 605-606, 344 A.2d 512, 515 (1975). See also: Commonwealth v. Perry, 334 Pa. Super. 495, 483 A.2d 561 (1984); Commonwealth v. Azim, 313 Pa. Super. 310, 459 A.2d 1244 (1983); Commonwealth v. Esposito, 236 Pa. Super. 127, 344 A.2d 655 (1975). Here, the evidence established without any reasonable doubt that appellant was a knowing participant in the robbery of the Arco station.

Appellant maintains that the record is "replete with inconsistencies" and that a conviction based on inconsistent testimony cannot be sustained. He argues that two of the Commonwealth's witnesses contradicted each other. However, a review of the record discloses only different recollections of the events preceding the robbery. These inconsistencies were so minor as to have no effect on the fact finder's ability to determine appellant's part in the robbery. They do not render the evidence insufficient to support a finding of guilt. The mere existence of a conflict in the details of the Commonwealth's case was not fatal. Commonwealth v. Smith, 502 Pa. 600, 607, 467 A.2d 1120, 1123 (1983); Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053 (1977); Commonwealth v. Maute, 336 Pa. Super. 394, 406, 485 A.2d 1138, 1145 (1984).

Appellant argues also that the Commonwealth witness, Kevin Davis, admitted using drugs prior to the robbery and that, therefore, his testimony should have been found unreliable. Issues of credibility are solely within the province of the trier of fact. Commonwealth v. Pettus, 492 Pa. 558, 561, 424 A.2d 1332, 1334 (1980); Commonwealth v. Brown, 336 Pa. Super. 628, 634, 486 A.2d 441, 444 (1985); Commonwealth v. Trignani, 334 Pa. Super. 526, 543, 483 A.2d 862, 871 (1984); Commonwealth v. Croll, 331 Pa. Super. 107, 116-117, 480 A.2d 266, 271 (1984); Commonwealth v. Sample, 321 Pa. Super. 457, 466, 468 A.2d 799, 803 (1983).

[ 358 Pa. Super. Page 103]

The Commonwealth produced at trial a member of the District Attorney's staff who testified that appellant, during a prior trial involving another crime, had admitted his participation in the robbery of the Arco service station. Appellant contends that his trial counsel was constitutionally ineffective for failing to object to this testimony.

When faced with an allegation that trial counsel rendered ineffective assistance, a court must first determine whether the issue underlying the claim is of arguable merit and, if so, whether the course chosen by counsel had a reasonable basis designed to serve the interest of his client. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). See: Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983).

Here, there is no arguable merit in appellant's contention. His prior admission, whether judicial or extra-judicial, was admissible as an exception to the hearsay rule. Commonwealth v. Boyle, 498 Pa. 486, 499, 447 A.2d 250, 256 (1982); Commonwealth v. Glass, 486 Pa. 334, 347, 405 A.2d 1236, 1243 (1979) (plurality opinion); Commonwealth v. Cristina, 481 Pa. 44, 53, 391 A.2d 1307, 1311 (1978) (plurality opinion), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975); Commonwealth v. Darden, 311 Pa. Super. 170, 174, 457 A.2d 549, 551 (1983). The protection of the Fifth Amendment against self-incrimination was waived when appellant voluntarily gave testimony in the prior proceedings. "The fact that [appellant] . . . exercised his right of silence during the second trial did not insulate him from the consequences of his earlier testimony. It has long been recognized that testimony from an earlier trial may be introduced in the prosecution's case against a defendant regardless of whether that defendant takes the stand or not in the second proceeding." Commonwealth v. Boyle, supra, 498 Pa. at 497, 447 A.2d at 256. See: Commonwealth v. Doughty, 139 Pa. 383, 21 A. 288 (1891);

[ 358 Pa. Super. Page 104]

    of a crime. The ineffectiveness claim, therefore, has no arguable merit since the contested statement was admissible under the declaration against penal interest exception to the hearsay rule.

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