Com. v. Byrd

• Decision Date: 15 August 1980
• Citation: 417 A.2d 173,490 Pa. 544
• Parties: , 19 A.L.R.4th 179 COMMONWEALTH of Pennsylvania v. Haddrick BYRD, Appellant.
• Court: Pennsylvania Supreme Court

Page 173

417 A.2d 173

490 Pa. 544, 19 A.L.R.4th 179

COMMONWEALTH of Pennsylvania v. Haddrick BYRD, Appellant.

Supreme Court of Pennsylvania.

Submitted April 18, 1980.

Decided July 3, 1980.

Reargument Denied Aug. 15, 1980.

Paul G. Hughes, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Ellen Mattleman, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

A jury convicted appellant Haddrick Byrd of murder of the second degree, robbery and conspiracy. Appellant's post-verdict motions were denied and concurrent judgments of sentence of life imprisonment for murder and twenty years imprisonment for robbery were imposed; sentence was suspended on the conspiracy conviction. This appeal then followed. ¹ We have reviewed appellant's various claims of error and now affirm the judgments of sentence.

Appellant challenges the sufficiency of the evidence for his convictions for murder of the second degree and robbery. ² These convictions are based on appellant's participation in the 1974 killing of Isadore Levin during early-morning religious services at Kesher Israel Synagogue in Philadelphia. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976), the evidence is ample to support the convictions.

The Commonwealth's first witness, Isadore Abramson, testified that he arrived at the synagogue at approximately 6:30 a. m. on the Sunday morning of September 1, 1974. Services normally began at 6:45 a. m. and Abramson arrived early to prepare breakfast for the small congregation. Abramson testified that shortly after 6:30 a. m. two men whom he did not know entered the synagogue. When Abramson asked if he could help them they replied that they just wanted "to see how you pray." Abramson told them that the service would begin when the others arrived in about fifteen or twenty minutes. Abramson testified that during this conversation both men stared at the large safe located in the synagogue.

The two men left the synagogue but returned about fifteen minutes later. By this time approximately eleven congregants had arrived and morning services had begun. The two men were again approached by Abramson and, separately, by another congregant and both times expressed a desire to observe the service. Shortly thereafter, however, as the prayers continued, one of the congregants suddenly began struggling with one of the two men, was pushed away and was shot twice at close range. As he fell, the congregant, Isadore Levin, cried, "He got me . . . ." The two men fled. Levin was pronounced dead on arrival at a nearby hospital.

Trial testimony by other congregants corroborated this account of the killing. In addition, Abramson and several other congregants made in-court identifications of appellant as one of the two men involved, although each witness indicated that appellant was not the man who fired the shots. A local merchant also identified appellant as one of the two men he saw, shortly after 7:00 a. m., riding a bicycle past his store. It was established that this was a route away from the synagogue and toward appellant's home.

The Commonwealth's final evidence came from Eugene Wharton, who testified to a statement appellant made to him when both were incarcerated at the Philadelphia Detention Center in late 1974. ³ Wharton testified that he had known appellant for several years and that when he met appellant at the Detention Center he told appellant that a common acquaintance, Lawrence Dunbar, had been picked up for "the synagogue killing." According to Wharton appellant laughed and proceeded to explain that it was he, appellant, along with a friend Larry Smith who had perpetrated the crime. Appellant then narrated to Wharton how he had been in the area on the morning of the killing looking for a way to make some money when he got the idea of holding up the synagogue. Appellant explained how, after surveying the synagogue, he went to find Smith and persuade him to join in the criminal adventure. Wharton related the remainder of appellant's statement as follows:

"(Appellant) (s)aid he asked Larry did Larry want to make any money and Larry asked him, 'Doing what?' He said that he just been down to the synagogue, you know, and that Jews don't put their money in, you know, in no banks. So he said that would be a good place to stick up. So Larry said, 'All right.' So, he said they strapped up, came on downstairs and they got bicycles and he said they rode back down to synagogue, got off the bikes and went inside. He says they was inside. Same guy approached. The man asked, could he help him. He said, no, that him and his friend had just came to observe the services. He said at that time Larry pulled out a pistol and told the guy it was a stick-up and that the guy didn't go for it and the guy rushed him. He says as the guy grabbed him Larry shot him up under the arm, he said and pushed him back, then shot him again in the chest. So then Larry turned around and ran back out the door and got on his bike and ran, you know, rode back, he says. So he went on outside, you know, to see where Larry had went behind the fact that he figured they was going to still go ahead and stick it up as they planned, but as he seen that he left he got on his bike and rode caught up with him and said he came back down to the projects together." ⁴

The evidence is without question sufficient to support the verdicts of guilty of murder of the second degree and robbery.

As a related claim, appellant contends that the evidence was insufficient to support his conspiracy conviction because the Commonwealth failed to prove the existence of any overt act either by him or by his alleged co-conspirator. Section 903(e) of the Crimes Code, 18 Pa.C.S. § 903(e), provides that:

"(e) Overt act. No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired."

This claim is equally meritless. Competent evidence showed that appellant and Smith, in furtherance of an express agreement to rob the synagogue, armed themselves with a gun and entered the synagogue together. The evidence further showed that, having announced the theft, one of them shot and killed a man who attempted to frustrate their scheme.

Appellant next maintains that his conspiracy conviction cannot stand because Smith, his only alleged co-conspirator, was subsequently acquitted of conspiracy at a separate trial. We reject this claim. There is no doubt that the crime of conspiracy requires proof of more than a single participant. 18 Pa.C.S. § 903(a). ⁵ As Justice Cardozo once noted: "It is impossible in the nature of things for a man to conspire with himself." Morrison v. California, 291 U.S. 82, 92, 54 S.Ct. 281, 285, 78 L.Ed. 664 (1934). Nevertheless, such generalizations do not require that a valid conviction for conspiracy against one defendant must be held in limbo pending the outcome of the separate trial or trials of all alleged co-conspirators. Nor do they require that a valid conspiracy conviction must subsequently be nullified by the acquittal of the other or others charged.

At the outset it is important to emphasize certain already well-established principles in this area. There is no doubt, for example, that one convicted of conspiracy is not entitled to relief simply because others charged have not yet been tried. United States v. Shipp, 359 F.2d 185 (6th Cir. 1966); DeCamp v. United States, 10 F.2d 984 (D.C.Cir. 1926). That the prosecution has nolle prossed charges against one or all of the others indicted is equally insufficient to afford a single convicted conspirator any relief. United States v. Koritan, 283 F.2d 516 (3rd Cir. 1960) aff'g 182 F.Supp. 143 (E.D.Pa.); United States v. Fox, 130 F.2d 56 (3rd Cir.), cert. denied, 317 U.S. 666, 63 S.Ct. 74, 87 L.Ed. 535 (1942); State v. Goldman, 95 N.J.Super. 50, 229 A.2d 818 (1967). So too, that the only other co-conspirators have been granted immunity and so cannot be tried does not bar conviction of the remaining defendant. Hurwitz v. State, 200 Md. 578, 92 A.2d 575 (1952); Berry v. State, 202 Ind. 294, 165 N.E. 61 (1929), 173 N.E. 705 (1930); see Farnsworth v. Zerbst, 98 F.2d 541 (5th Cir. 1938) (diplomatic immunity). And, indeed, it is established that where the other alleged co-conspirators are unapprehended, Rosenthal v. United States, 45 F.2d 1000 (8th Cir. 1930), unindicted, United States v. Monroe, 164 F.2d 471 (2d Cir. 1947), cert. denied, 333 U.S. 828, 68 S.Ct. 452, 92 L.Ed.2d 1113 (1948), dead, People v. Nall, 242 Ill. 284, 89 N.E. 1012 (1909), or even, in some instances, unknown, United States v. General Motors Corp., 121 F.2d 376, 411 (7th Cir.), cert. denied, 314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497 (1941), there is no basis to disturb a valid conviction for conspiracy. See generally Gardner v. State, 286 Md. 520, 524, 408 A.2d 1317, 1320 (1979); Developments in the Law Criminal Conspiracy, 72 Harv.L.Rev. 922, 973 (1959). The only question still apparently open to any debate, see e. g., People v. Kuland, 266 N.Y. 1, 193 N.E. 439 (1934) (question is "arguable"), is whether an acquittal of all alleged co-conspirators should produce a different result. At least in the case, such as this, of a subsequent acquittal, we do not believe that it should.

Admittedly, some authority, including certain decisions of our own Superior Court, does assert that the acquittal of all but one conspirator requires the discharge of the remaining defendant. E. g., Commonwealth v. Campbell, 57 Pa.Super. 160, 390 A.2d 761 (1978); Commonwealth v. Avrach, 110 Pa.Super. 438, 168 A. 531 (1933); see note 6, infra. This rule, however, had its origins at a time when co-conspirators were jointly tried. In that circumstance a single jury would...