Com. v. Calderini

• Decision Date: 10 August 1992
• Citation: 611 A.2d 206,416 Pa.Super. 258
• Parties: COMMONWEALTH of Pennsylvania v. James J. CALDERINI, Appellant.
• Court: Pennsylvania Superior Court

Page 206

611 A.2d 206

416 Pa.Super. 258

COMMONWEALTH of Pennsylvania v. James J. CALDERINI, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 16, 1992.

Filed June 3, 1992.

Reargument Denied Aug. 10, 1992.

Stephen H. Begler, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CAVANAUGH, WIEAND and HESTER, JJ.

WIEAND, Judge.

James Calderini was tried by jury and was found guilty of robbery. ¹ Following the denial of post-trial motions, he was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. On direct appeal from the judgment of sentence, Calderini contends that there was insufficient evidence to support his conviction and that the trial court committed reversible error during its instructions to the jury. Finding no merit in these contentions, we affirm the judgment of sentence.

In reviewing a challenge to the sufficiency of the evidence, we must determine, "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). In addition, the facts and circumstances established by the Commonwealth "need not be absolutely incompatible with defendant's innocence, but the question of any doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

So viewed, the evidence at appellant's trial established that, on March 24, 1990, at or about 7:30 p.m., John Chilton entered the Springdale Pharmacy and asked an employee if the store's owner-pharmacist was present. Chilton was told that the owner was not there, but that another pharmacist was on duty. He then asked the pharmacist on duty if she would show him literature about a certain drug. When the pharmacist retrieved the requested information, Chilton grabbed her by the wrist and pushed her to the floor. Subsequently, Chilton began kicking the cabinet in which narcotic drugs were stored, and he removed therefrom a bottle containing Tylenol with codeine pills before fleeing the store. During the robbery, Joseph Rometo was observed standing outside the pharmacy, and, after Chilton had fled the store, Rometo was seen walking away from the pharmacy in the same direction as Chilton.

Springdale Police Officer Gene Polsinelli, immediately prior to receiving a radio report of the robbery, had observed a large brown sedan pull away from the curb about one block from the pharmacy. The occupants of the vehicle appeared suspicious. Twenty minutes after the robbery, Officer Joseph Naviglia of the Tarentum Borough Police Department observed a brown Lincoln Continental being driven out of Springdale. The vehicle was driven by the appellant, James Calderini, and its passengers were Joseph Rometo and John Chilton. Prior to this observation, Naviglia had been informed of the robbery via police radio and had been told that Rometo had been seen outside the pharmacy during the robbery by Chilton. Naviglia called for backup and followed the vehicle to the home of Rometo. When the vehicle left Rometo's home, Naviglia continued to follow it until it broke down on Route 28. Upon the arrival of other officers, Naviglia approached the vehicle and asked appellant for identification. Appellant told the officer his name was Spencer and gave the officer identification reciting that his name was Spencer. When appellant was subsequently searched, police found on his person four Tylenol with codeine pills of the same kind which had been taken by Chilton from the pharmacy.

Based upon these facts, appellant, Rometo and Chilton were charged with robbery and criminal conspiracy. Chilton entered a plea of guilty to robbery, and appellant and Rometo were subsequently tried jointly upon the theory that they had been accomplices of Chilton. Both were convicted of robbery, but acquitted on the charge of conspiracy. In this appeal, Calderini argues that the Commonwealth failed to prove that he was an accomplice because there was no evidence that he had been present at the scene of the crime or that he actively participated therein.

"A person is legally accountable for the conduct of another person when he is an accomplice of that person in the commission of [an] offense." Commonwealth v. Orlowski, 332 Pa.Super. 600, 616, 481 A.2d 952, 960 (1984). See: 18 Pa.C.S. § 306.

An accomplice is one who "knowingly and voluntarily cooperates with or aids another in the commission of a crime." Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an accomplice, "one must be an active partner in the intent to commit [the crime]." Commonwealth v. Fields, supra 460 Pa. at 319-320, 333 A.2d at 747 [1975]; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). "An [accomplice] must have done something to participate in the venture." Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978).

Commonwealth v. Brady, 385 Pa.Super. 279, 284-285, 560 A.2d 802, 805 (1989). However, "[t]he least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice." Commonwealth v. Graves, 316 Pa.Super. 484, 489-490, 463 A.2d 467, 470 (1983). See: Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981).

Although appellant is correct in his assertion that there was no direct evidence placing him at or near the pharmacy at the time of the robbery, the evidence did show that only twenty minutes later he was driving a vehicle which a jury could find, by inference, was the getaway car. At that time, moreover, appellant had in his possession four Tylenol pills of the same type which had been taken during the robbery. His possession of these pills was alone circumstantial evidence of guilt, for our Supreme Court has observed that a person's possession of property shown to have been possessed recently by "the victim of a robbery is evidence that such person was a party to the robbery." Commonwealth v. Wilson, 394 Pa. 588, 606, 148 A.2d 234, 244 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). See: Commonwealth v. Kaufman, 179 Pa.Super. 247, 251, 116 A.2d 316, 319 (1955) ("possession of goods recently stolen in the perpetration of a robbery or burglary is evidence of guilt on charges of not only larceny but of both robbery and burglary as well."); Commonwealth v. Lehman, 166 Pa.Super. 181, 185, 70 A.2d 404, 406 (1950) (same). See also: Commonwealth v. Lawson, 204 Pa.Super. 239, 242, 203 A.2d 406, 407 (1964) (defendant's possession of recently stolen goods warranted jury in finding that he was the robber); Commonwealth v. Fusci, 153 Pa.Super. 617, 621, 35 A.2d 93, 95 (1943) ("[P]ossession of recently stolen property is evidence that the possessor is the thief."). " 'However, such evidence is not conclusive and may be rebutted. It is for the trier of fact alone to say whether the guilt of the defendant is a reasonable inference, fairly deducible from his possession of recently stolen property, in light of all the circumstances, including the reasonableness of his explanation, if any, as to how he came into possession.' " Commonwealth v. Thomas, 305 Pa.Super. 158, 165, 451 A.2d 470, 473 (1982), quoting Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965).

When appellant's possession of the pills is considered along with his driving of the getaway car only twenty minutes after the robbery, it seems clear that a jury could infer that appellant was a participant in the robbery as Chilton's accomplice. See: Commonwealth v. Perry, 334 Pa.Super. 495, 503, 483 A.2d 561, 565 (1984) (defendant's driving of getaway car minutes after her husband had robbed gas station and her possession of money taken in the robbery constituted sufficient evidence to establish her guilt as an accomplice to the robbery). Here, appellant also gave a false name and identification when stopped by the police. This was an additional circumstance tending to show consciousness of guilt. See: Commonwealth v. Boyle, 498 Pa. 486, 497, 447 A.2d 250, 255-256 (1982); Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955); Commonwealth v. Meadows, 381 Pa.Super. 354, 362, 553 A.2d 1006, 1010 (1989). Therefore, despite the fact that there was no direct evidence placing appellant at the scene of the robbery, we hold that the evidence that he was driving the getaway car a short time after the robbery, that he falsely identified himself to police and that he had in his possession fruits of the robbery was sufficient to establish circumstantially that appellant was an accomplice in the commission of the robbery. ²

Appellant also contends that the trial court committed reversible error when, in response to an inquiry from the jury, the court gave the following additional instruction:

Now, ladies and gentlemen, you also asked about an accessory after the fact, and that's different from being an accomplice. An accessory after the fact is somebody...