Com. v. Flowers

• Decision Date: 02 June 1978
• Parties: COMMONWEALTH of Pennsylvania v. Donald FLOWERS, Appellant.
• Court: Pennsylvania Supreme Court

Page 1268

387 A.2d 1268

479 Pa. 153

COMMONWEALTH of Pennsylvania v. Donald FLOWERS, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 21, 1977.

Decided June 2, 1978.

[479 Pa. 154] James F. Geddes, Jr., Wilkes-Barre, for appellant.

Patrick J. Toole, Jr., Dist. Atty., Thomas J. Glenn, Jr., Asst. Dist. Atty., for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION OF THE COURT

MANDERINO, Justice.

Appellant was charged as an accessory before the fact under the Penal Code of 1939, § 1105, as amended, 18 P.S. § 5105 (since repealed and replaced by the Crimes Code of 1973) for his alleged participation in the sale of marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act of 1972, § 13(a)(30), as amended, 35 P.S. § 780-113(a)(30). He was convicted after a nonjury trial, and post-verdict motions challenging the sufficiency of the evidence were denied. The Superior Court affirmed the judgment of sentence, with Judge Spaeth filing a dissenting opinion in which Judge Cercone joined. We granted appellant's petition for allowance of appeal.

Appellant argues before us, as he did below, that the evidence does not establish that he committed such acts as to make him an accessory before the fact or principal in the second degree to the felony of selling a controlled substance. We agree that the evidence is insufficient to sustain the conviction, and we therefore reverse the judgment of sentence and discharge the appellant.

In order to review the sufficiency of the evidence we are required to examine the facts in the light most favorable to the prosecution as verdict winner. The record, so viewed, establishes that in October, 1972, two agents of the Pennsylvania Department of Health, Bureau of Drug Control, were conducting undercover narcotics operations in Public Square in Wilkes-Barre. Dressed casually in the manner of other young people in the area, the agents habitually loitered in the square, mingling with others who gathered there, and occasionally approached someone for drugs.

On October 6, 1972, appellant was in the Square with a female friend and her child. One of the agents approached appellant and asked him whether he had any drugs in his possession. Appellant answered that he did not. A few minutes later a third party, George Shiner, approached appellant and his friend, and appellant then called the agent over and introduced him to Shiner, indicating that Shiner had some marijuana. The entire group drove in the agents' car to Shiner's residence, where they were joined by yet another person, John Dustin, who brought with him a supply of marijuana. Dustin passed marijuana to Shiner, who passed it to the agent; the agent passed $200 through Shiner to Dustin. Appellant was present throughout the transaction, but handled neither marijuana nor money, nor did he enter any of the negotiations or conversation related to the sale. The agents' testimony establishes no participation other than the original introduction of the agent to Shiner.

The crime of which appellant was convicted is that of being an accessory before the fact, defined as one who plans, cooperates, assists, aids, counsels or abets in the perpetration of a felony. Commonwealth v. Leach,455 Pa. 448, 451, 317 A.2d 293, 294-95 (1974); Commonwealth v. McFadden,448 Pa. 146, 292 A.2d 358 (1972). Appellant's mere presence during the crime did not constitute such aiding and abetting. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978); Commonwealth v. Pierce, 437 Pa. 266, 263 A.2d 350 (1970); Commonwealth v. Giovanetti, 341 Pa. 345, 19 A.2d 119 (1941). An accessory must have done something to participate in the venture. Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972).

In the instant case, the prosecution relied upon appellant's introduction of the agent to Shiner as a source of marijuana as the sole basis for appellant's involvement in the crime. In sustaining the conviction, both the trial court and the Superior Court reasoned that if appellant had not brought buyer and seller together the sale would not have been accomplished, and that this contribution to the chain of events was enough in itself to constitute aiding and abetting the sale without regard to whether appellant had any connection whatsoever with either the seller or his plans. In thus taking a causative approach and applying a "but-for" test, the court expressly rejected any consideration of the intent of the parties in their commission of the acts involved.

It has long been established, however, that intent of the parties is a consideration essential to establishing the crime of aiding and abetting a felony. We apply not a test of causation, but a test of partnership or concert of action to determine guilt as an accessory. The test has been enunciated by this Court thusly:

"If one aids and abets in the commission of a crime, he is guilty as a principal. One is an aider and abettor in the commission of any crime, i. e., he has 'joined in its commission,' if he was an active partner in the intent which was the crime's basic element. Chief Justice Gibson in Rogers v. Hall, 4 Watts 359, said: 'The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all.' " (Emphasis added.)

Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75, 79 (1937).

More recently, we enunciated the test as follows:

"To aid or abet in the commission of a crime, one must be an active partner in the intent to commit it. Therefore, to convict McFadden as an aide (sic) or abettor in the killing, it was necessary for the Commonwealth to establish beyond a reasonable doubt that he was an active partner in Washington's lethal purpose." (Citations omitted.) (Emphasis added.)

Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972).

This is the test not only in Pennsylvania; it has been the accepted rule both under the common law and under most modern statutes elsewhere. See, e. g., Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). In contrast, the causation test has been firmly rejected. The law in this regard was ably set forth by the Sixth Circuit in an oft-cited opinion, Morei v. United States, 127 F.2d 827, 831 (6th Cir. 1942):

"If the criterion for holding that one is guilty of procuring the commission of an offense, is that the offense would not have been committed except for such a person's conduct or revelation of information, it would open a vast field of offenses that have never been comprehended within the common law by aiding, abetting, inducing or procuring. As Judge Hand remarked, in United States v. Peoni, supra (100 F.2d 401), 'It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used even the most colorless, "abet" carry an implication of purposive attitude towards it." (Emphasis added.)

Thus, in order to convict appellant as an accessory before the fact one who aids and abets it was incumbent upon the prosecution to prove beyond a reasonable doubt that he was an active partner in the intent to make this sale. We do not find sufficient evidence of such an attitude or intent in the record, or any acts by appellant from which the inference could reasonably be drawn, as our cases require, that he was such an active participant in the intent.

The uncontroverted evidence is that appellant approached neither Shiner nor the agent. The agent first approached appellant and asked him for drugs, and appellant's answer was simply that he had none. The prosecution does not contend that he offered to obtain any, or that he made any suggestions as to where or from whom it might be procured. There is no evidence that he met Shiner by design or plan, or that Shiner was any more than a passing acquaintance. The evidence establishes only that shortly after the agent's request Shiner came over to appellant and his friend, and that appellant then suggested to the agent that Shiner had marijuana. The evidence implies more a friendly gesture of accommodation than an intent to bring about a sale, especially when viewed in light of the total...