Com. v. Azim

• Decision Date: 07 June 1983
• Citation: 313 Pa.Super. 310,459 A.2d 1244
• Parties: COMMONWEALTH of Pennsylvania v. Charles AZIM, Appellant.
• Court: Pennsylvania Superior Court

Page 1244

459 A.2d 1244

313 Pa.Super. 310

COMMONWEALTH of Pennsylvania v. Charles AZIM, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 6, 1983.

Filed March 25, 1983.

Reargument En Banc Denied June 7, 1983.

Marilyn J. Gelb, Philadelphia, for appellant.

David L. DaCosta, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, BECK and JOHNSON, JJ.

PER CURIAM:

Appellant Charles Azim appeals nunc pro tunc from judgments of sentence imposed for criminal conspiracy and robbery. He seeks dismissal of all the charges brought against him. In the alternative, he requests a new trial on a lesser charge of robbery and a vacating of the conspiracy sentence, for resentencing following the outcome of the new robbery trial.

Appellant was arrested, along with Mylice James and Thomas Robinson, on September 18, 1977 for simple assault, robbery, and conspiracy. The victim of the robbery was Jerry Tennenbaum, a Temple University student. Appellant drove a car in which the other two men were passengers. Appellant stopped the car, Robinson called Tennenbaum over to the curb, the two passengers got out of the car, inflicted bodily injury on Tennenbaum, took his wallet which had fallen to the ground, and immediately left the scene in the same car driven by appellant. Robinson and appellant were tried to a jury and convicted as co-defendants in April 1978. After denial of post-trial motions, appellant was sentenced to five to ten years for robbery and five to ten years for conspiracy, the sentences to run concurrently. He received a suspended sentence for assault.

Appellant's trial counsel did not file a timely appeal on his behalf and on January 25, 1979 he filed a pro se Petition under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. claiming ineffective assistance of counsel on the grounds, inter alia, of failure to file an appeal of the conviction. New counsel was appointed, and on October 9, 1980, appellant was granted the right to appeal, nunc pro tunc. The PCHA Petition raised other issues relating to ineffectiveness of counsel which were denied at the PCHA hearing. The direct appeal and the appeal under PCHA are here consolidated.

Appellant's co-defendant Robinson also appealed from the judgment of sentence. In January 1980 this Court vacated judgment of sentence and remanded for a new trial on the charges of simple assault and robbery; affirmed judgment of sentence on the charge of conspiracy, and remanded for resentencing on conspiracy. Commonwealth v. Robinson, 284 Pa.Super. 152, 425 A.2d 748 (1980). On July 29, 1981, the trial judge ordered similar relief for appellant. ¹

In this appeal, appellant presents two issues: (1) that he was convicted upon insufficient evidence; and (2) that his trial counsel was ineffective in the course of the trial. ² The claim of insufficiency of the evidence relates to the charge of criminal conspiracy. He argues that because his conspiracy conviction was not supported by sufficient evidence against him, the charges of assault and robbery must also fail.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) holds that an essential of due process guaranteed by the Fourteenth Amendment is that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof, which is defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. In Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982) (also reviewing the sufficiency of the evidence in a conspiracy charge) our Court maintained that the test to be applied in appraising the sufficiency of the evidence is a two-step inquiry:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 386 A.2d 117 (1978); Commonwealth v. Luther, 266 Pa.Superior Ct. 240, 403 A.2d 1329 (1979). Criminal conspiracy is defined as:

(a) Definition of conspiracy--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903 (1973).

"The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished." Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, supra. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra. Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy "may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed." Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958) (Volk, at 1184-5).

At trial, the prosecution presented evidence that established that appellant was the driver of the car in which James and Robinson (the men who demanded money from Tennenbaum and beat and choked him) rode. Robinson was seated on the front seat,...