Com. v. French

• Decision Date: 18 September 1990
• Citation: 396 Pa.Super. 436,578 A.2d 1292
• Parties: COMMONWEALTH of Pennsylvania v. Kathleen FRENCH, Appellant.
• Court: Pennsylvania Superior Court

Page 1292

578 A.2d 1292

396 Pa.Super. 436

COMMONWEALTH of Pennsylvania v. Kathleen FRENCH, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 15, 1989.

Filed July 11, 1990.

Reargument Denied Sept. 18, 1990.

Helen A. Marino, Asst. Public Defender, Philadelphia, for appellant.

George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, BECK and MONTGOMERY, JJ.

BECK, Judge:

This is an appeal taken from a judgment of sentence imposed following a jury trial at which appellant was convicted of aggravated assault, ¹ resisting arrest ² and conspiracy ³. After post-trial motions were denied appellant was sentenced to concurrent five-year terms of probation for aggravated assault and conspiracy. Sentence for resisting arrest was suspended. This appeal followed.

Appellant's convictions arose from events which occurred during the early morning hours in the Frankford section of Philadelphia. Police officer John Welsh was summoned to the scene of a fight. When he arrived he saw appellant Kathleen French and three companions assaulting a lone black man who was pinned to the ground and being beaten by his four assailants. Appellant's companions were James Moran, appellant's boyfriend, Elizabeth Quinn, appellant's sister and Michael Haughey, the sister's boyfriend.

Officer Welsh pushed appellant, Quinn and Moran back from their victim and then pulled Haughey off him. Meanwhile, three more police officers were arriving at the scene: Officers Stephan, Draft and Griffin. After the parties were separated, the police asked the man with whom appellant and her friends had been fighting whether he wanted to press charges. He stated that he did not, at which point the police told him to leave. Although the police also instructed appellant and her companions to leave, they did not comply. Instead, appellant, Moran, Quinn and Haughey began shouting obscenities and insults at the police officers. ⁴ More than once the police asked the group to leave. Co-defendant Michael Haughey then made an offensive remark to Officer Welsh and punched him in the face. Welsh struck Haughey in response and then attempted to place him under arrest.

While Welsh was trying to control Haughey, co-defendant James Moran also struck Welsh in the face with his fist. Officers Welsh and Stephan attempted to handcuff Haughey while Officers Griffin and Draft struggled to do the same with Moran. First Haughey was placed under arrest and Officer Stephan was able to come to the aid of the officers who were grappling with Moran. Finally, with three officers involved in the effort, Moran was handcuffed. During the effort to subdue Moran and Haughey, appellant and her sister were circling the officers, continuing to hurl verbal abuse at the police. At one point, appellant also ran up to Officer Welsh and punched him "square in the nose". Officer Stephan grabbed appellant and, despite her resistance, arrested and handcuffed her. Appellant and Moran, in particular, continued to struggle and shout obscenities at the officers during the ride to the police station. When they arrived Moran resisted the officers' attempts to remove him from the police van and place him in a cell.

On appeal, appellant makes several claims of error concerning the conduct of her trial. ⁵ She contends that: 1) the evidence was insufficient to sustain a conviction for conspiracy; 2) the trial court erroneously instructed the jury on various matters, in particular, on the definition of the defense of justification; 3) the trial court improperly restricted cross-examination of police witnesses regarding an Internal Affairs Investigation of the above-described incident; and 4) after conducting an in camera inspection, the trial court erred in refusing to turn over to defense counsel certain statements which the police witnesses had given to the Internal Affairs investigators.

--Criminal Conspiracy--

The applicable standard of review for challenges to the sufficiency of evidence is well-settled. We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence. Commonwealth v. Hughes, 521 Pa. 423, 429-31, 555 A.2d 1264, 1267 (1989); Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988) (en banc).

Appellant contends that the evidence of conspiracy fails to satisfy this standard because the Commonwealth failed to establish a conspiratorial agreement among the parties. It is clear that essential to the crime of conspiracy is a common understanding and agreement that a crime will be committed. See Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983); Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988). It is equally plain that direct proof of such an agreement is rarely available, nor is it necessary. Thus, "proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities". Commonwealth v. Campbell, 353 Pa.Super. 178, 180-81, 509 A.2d 394, 395 (1986) (quoting Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937)). An agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail. See Commonwealth v. Lamb, 309 Pa.Super. 415, 429, 455 A.2d 678, 685-86 (1983).

Appellant argues that the Commonwealth's evidence proved only a spontaneous, impulsive confrontation between appellant, her cohorts and the police, and the evidence therefore was insufficient to show conspiracy. She relies on Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982). However, Kennedy is distinguishable. In Kennedy, the Supreme Court found insufficient evidence of a conspiracy where the defendant and his alleged co-conspirator assaulted the landlord of the building in which defendant lived. The court found nothing in the relationship of the parties to indicate an implicit or explicit agreement to engage in an assault and found that although the parties acted simultaneously, they nevertheless acted independently.

Here, on the other hand, all the co-conspirators acted as a group in concert. Before the police arrived, they acted together to commit an assault on the lone black man. They were told as a group to disperse but instead they decided, as a group, to stay and engage in joint criminal conduct in which each was spurring the others on toward a common criminal purpose. It is unnecessary to prove an explicit and formal agreement between the conspirators. The agreement necessary to support a conspiracy conviction can be wholly tacit so long as the surrounding circumstances confirm that the parties have decided to act in concert. In this case, the actors' relationships and their conduct before, during and after the criminal episode established a unity of criminal purpose sufficient for the jury to find conspiracy beyond a reasonable doubt.

--Jury Instructions--

Appellant makes three claims with respect to the trial court's instructions to the jury. First she argues that the trial court confused the jury by erroneously omitting which police officer was the "object" of the conspiracy. Next she claims that the trial court erred by failing to give the jury her suggested charge on prior inconsistent statements. Her third complaint with respect to the trial court's charge is that the court incorrectly stated the law on "justification" by erecting a more onerous standard than the Crimes Code dictates. Specifically, she argues that she was entitled to a charge on justification which would have informed the jury that she was justified in using force against a police officer if she reasonably believed he threatened any bodily injury to a third party (in this case James Moran). In its instructions the trial court restricted the justification defense to those instances where serious bodily injury or death is threatened.

We may quickly dispose of appellant's first two arguments regarding conspiracy and prior inconsistent statements. It is axiomatic that in evaluating jury instructions we review the charge as a whole, not as isolated excerpts. Reversal is required only if the asserted errors resulted in prejudice to the defendant. See Commonwealth v. Riggins, 374 Pa.Super. 243, 253, 542 A.2d 1004, 1009 (1988). In the instant case, the trial court indicated to the jury that only police officer Welsh was the intended victim of appellant's actions. Thus appellant's assertion that the court failed to identify the officer who was the victim of the conspiracy is wholly without merit.

Additionally, the trial court did not err in refusing to instruct the jury on appellant's requested instruction on prior inconsistent statements. A review of the record reveals that the trial court's instructions adequately and clearly presented the law to the jury. The judge was not required to accept requested instructions. See Commonwealth v. Cimorose, 330 Pa.Super. 1, 478 A.2d 1318 (1984).

Lastly, we address appellant's argument that the trial court's instruction on the justification defense was in error. The issue appears to be one of first impression in this Commonwealth. After carefully examining decisions from other jurisdictions and evaluating the underlying policy implications, we conclude that the trial court correctly instructed the jury on the necessary components of a justification defense in the context of resisting arrest.

At trial appellant testified that she struck Officer Welsh in an effort to stop him from...