Com. v. Herrick

• Decision Date: 25 April 1995
• Citation: 660 A.2d 51,442 Pa.Super. 412
• Parties: COMMONWEALTH of Pennsylvania, v. Mark A. HERRICK, Sr., Appellant.
• Court: Pennsylvania Superior Court

Page 51

660 A.2d 51

442 Pa.Super. 412

COMMONWEALTH of Pennsylvania, v. Mark A. HERRICK, Sr., Appellant.

Superior Court of Pennsylvania.

Argued Jan. 26, 1995.

Filed April 25, 1995.

James A. Zurick, Shamokin, for appellant.

Gregory A. Stuck, Asst. Dist. Atty., Sunbury, for Com., appellee.

Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

OLSZEWSKI, Judge:

On January 22, 1992, James Kerstetter, a police informant, went on a "buy and bust" operation for the Northumberland Police Department. He was strip-searched, provided with $180.00, and sent to the home of appellant, Mark Herrick. He came out of the house approximately ten minutes later with two one-gram bags of cocaine. Kerstetter later testified that he bought the drugs from Robert Sheets while sitting at appellant's kitchen table. N.T. 5/21/93 at 18, 20. Appellant was also sitting at the table the entire time. Afterwards, both appellant and Sheets telephoned Kerstetter, asking him if he wanted to purchase more drugs. Id. at 21. Kerstetter went through the same routine the next day, this time exchanging $270.00 of Northumberland County funds for three and one-half grams of cocaine.

Appellant was convicted of two counts of conspiracy to deliver a controlled substance ¹ for which he was sentenced to 24-to-60 months incarceration on one count and 6-to-36 months incarceration on the other, to be served consecutively. He now raises the following three issues on appeal: The evidence was insufficient to find him guilty of conspiracy beyond a reasonable doubt; the Commonwealth did not sustain its burden to prove beyond a reasonable doubt that he entered into more than one conspiracy; and the trial court impermissibly abrogated his right to confront witnesses by denying him access to Kerstetter's pre-sentence report for discovery and/or impeachment purposes.

I.

In reviewing sufficiency of the evidence claims, our standard of review is well settled:

[W]e must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. [citation omitted]. The credibility of witnesses and the weight to be accorded the evidence are matters within the province of the trier of fact, the fact finder is free to believe all, some or none of the evidence. (citation omitted).

Commonwealth v. Hill, 427 Pa.Super. 440, 442, 629 A.2d 949, 950 (1993) (quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984)), allocatur denied, 538 Pa. 609, 645 A.2d 1313 (1994); see also Commonwealth v. Thompson, 538 Pa. 297, 648 A.2d 315 (1994); Commonwealth v. Lanager, 360 Pa.Super. 578, 521 A.2d 53 (1987). Appellant argues that Kerstetter's testimony was incredible. Under this standard of review, however, we will not revisit the trier of fact's credibility determinations. Commonwealth v. Rhone, 422 Pa.Super. 521, 619 A.2d 1080, allocatur denied, 534 Pa. 653, 627 A.2d 731 (1993).

Appellant also claims that he was nothing more than a bystander to the transaction between Sheets and Kerstetter. We agree that no bright-line test exists for establishing a case of conspiratorial agreement. Commonwealth v. Mercado, 420 Pa.Super. 588, 595, 617 A.2d 342, 346 (1992) (per Hoffman, J., with one judge concurring in the result and one judge dissenting). Reading the evidence and all its reasonable inferences in the light most favorable to the Commonwealth, however, we find that appellant was a conspirator in the sale of the cocaine.

"The essence of a criminal conspiracy is the agreement to perform an unlawful act." Commonwealth v. Eddowes, 397 Pa.Super. 551, 558, 580 A.2d 769, 773 (1990) (citations omitted), allocatur denied, 529 Pa. 631, 600 A.2d 951 (1991). Here, appellant knew Sheets, knew the crime was being committed, and was immediately present during its commission, which took place in his own home. Under such circumstances, the fact finder was free to infer that a conspiracy had been committed. Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244 (1983). "By its very nature, the crime of conspiracy is frequently not susceptible to proof except by circumstantial evidence." Id. at 314, 459 A.2d at 1246 (quoting Commonwealth v. Volk, 298 Pa.Super. 294, 300, 444 A.2d 1182, 1185 (1982) (citations omitted)).

II.

Appellant further maintains that the evidence could not support two counts of conspiracy, as the two sales to Kerstetter were part of only one conspiracy with multiple criminal objectives. Appellant's brief at 10-11. In support, appellant cites to 18 Pa.C.S.A. § 903(c) ² and Commonwealth v. Lore, 338 Pa.Super. 42, 487 A.2d 841 (1984). In Lore, appellant's boyfriend shot and killed John McNulty. Appellant and two friends assisted the shooter in concealing and/or destroying all evidence of the murder, including the corpse. To this end, the conspirators dismembered the body and carried the parts in trash bags to the Susquehanna River, where they disposed of the remains. We held in Lore that both the conspiracy to abuse a corpse and the conspiracy to hinder apprehension or prosecution were part of one common plan to dispose of the evidence in order to achieve the conspirator's goal of avoiding arrest. Id. at 66-69, 487 A.2d at 854-855.

In support of our holding in Lore, we stated the following principle:

A single, continuing conspiracy is demonstrated where the evidence proves that the essential feature of the existing conspiracy was a common plan or scheme to achieve a common, single, comprehensive goal.... A single, continuing conspiracy may contemplate a series of offenses, or be comprised of a series of steps in the formation of a larger, general conspiracy....

Therefore, where the evidence at trial is sufficient for the jury to infer that the essential features of the existing conspiracy were a common plan or scheme to achieve a common, single, comprehensive goal or end, then the conclusion that the conspiracy was a single, continuing conspiracy is justified.

Id. at 68, 487 A.2d at 855 (citations omitted) (quoting United States v. Continental Group, Inc., 456 F.Supp. 704, 716 (E.D.Pa.1978), aff'd, 603 F.2d 444 (3rd Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980)). Each of the acts committed by the defendant in Lore was aimed at destroying the victim's corpse to avoid detection. There was no point to abusing McNulty's body save for destroying the evidence of his murder. The conspirators, for instance, would have gained nothing, nor furthered their plan, if they dismembered the body only to leave it in the home of one of the conspirators. ³

In Commonwealth v. Savage we embraced the following multifactor test for distinguishing multiple conspiracies from single conspiracies. 388 Pa.Super. 561, 566 A.2d 272 (1989).

[W]e ... find the multifactor totality of the circumstances analysis embraced by the majority of federal circuit courts for distinguishing single from multiple conspiracies to be a generally appropriate approach....

The factors most commonly considered in a totality of the circumstances analysis ... are: the number of overt acts in common; the overlap in personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the location in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and, the degree to which interdependence is needed for the overall operation to succeed.

Id. at 575, 566 A.2d at 278 (citations omitted). Furthermore, "no one factor or combination of factors is necessarily dispositive." Id. at 575, 566 A.2d at 279.

In the case sub judice, there were two drug transactions, both involving the same people, the same location, held under similar circumstances, committed within one day of each other. Like the first issue raised by appellant, this one also addresses the sufficiency of the evidence. The record does not show, however, that appellant and Sheets shared a common objective, or that this was part of a common plan or scheme, other than a general purpose to make money illicitly. If, for instance, appellant and Sheets expressly told Kerstetter to come back the next day to pick up some more drugs, we might agree that there was but one conspiracy. Neither illegal transaction with Kerstetter, however, was necessarily intertwined with the other; both were independent phenomena. Unlike the situation in Lore, where in order to destroy the evidence McNulty's corpse had to be abused, here the execution of one drug transaction was not necessary for the other one to succeed. Where the success of one crime is not dependent upon another, the conspiracy to commit both are separate and distinct.

Viewing the evidence in the light most favorable to the Commonwealth, we cannot say that as a matter of law two distinct conspiracies did not exist. Appellant focuses on the fact that Kerstetter believed that he would probably be back in the near future to purchase more cocaine. What the police and their informant believed is beside the point, however. The conspiracies existed between appellant and Sheets, not among appellant, Sheets, and Kerstetter.

"Just as a single entrepreneur may enter into several separate yet similar joint business ventures with the same or different partners or investors at the same time, criminals in general and drug traffickers in particular may enter into more than one criminal conspiracy involving similar crimes at the same time, even in the same area." Savage, 388 Pa.Super. at 572, 566 A.2d at 277. Apparently, Sheets and appellant created a corrupt partnership. The creation of a corrupt business venture, however, is distinguishable from a conspiracy to commit a specific crime. Murder, Incorporated, for instance, was one venture involved in many conspiracies. While dissimilar criminal acts may constitute one conspiracy,...