Com. v. Johnson
| Decision Date | 23 October 1998 |
| Citation | 719 A.2d 778 |
| Parties | COMMONWEALTH of Pennsylvania v. Carlo JOHNSON, Appellant. |
| Court | Pennsylvania Superior Court |
Oscar Gaskins, Philadelphia, for appellant.
Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for the Com., appellee.
Before McEWEN, President Judge, and DEL SOLE, KELLY, POPOVICH, FORD ELLIOTT, JOYCE, ORIE MELVIN, MUSMANNO and SCHILLER, JJ. FORD ELLIOTT, Judge:
In December 1994, appellant Carlo Johnson was arrested and charged with criminal homicide, aggravated assault, recklessly endangering another person, and criminal conspiracy.1 These charges arose out of appellant's participation in a series of incidents on November 11, 1994, which resulted in the death of Edward Polec and injuries to Richard Stuber and John Atkinson.
The facts of the case as are as follows. On November 4, 1994, an argument occurred in the Fox Chase section of Philadelphia between a group of teenagers from Abington and a group of teenagers from Fox Chase. One of the Abington teenagers, Jessica Simons, told Bou Khathavong about the incident. During the following week, Khathavong recruited a group of people from Abington to go to Fox Chase to seek revenge.
On November 11, 1994, Anthony Rienzi, Kevin Convey, and other teenagers went to Philadelphia to purchase marijuana. A short time later, Rienzi and Convey met Khathavong and appellant. Khathavong told the group he wanted to meet some of the people who usually gathered at the Fox Chase Recreation Center at a McDonalds at 10:30 p.m. Appellant, Khathavong, Rienzi, and Convey then went to Thomas Crook's house to recruit more people for the fight they expected to occur at the McDonalds, with Khathavong in particular calling people for this purpose. While at Crook's house, appellant talked about `curbing' somebody, which he explained to mean that "if somebody was laying down on their stomach, he would open their mouth up over at the corner of the curb and kick down on the back of their head." (Notes of testimony, 1/23/96 at 25-26.) After the group left Crook's house in two cars, Nicholas Pinero joined the group in his car. The three cars then went from the McDonalds to Rob Cofield's house. Cofield was not at home. While the group was waiting in the street for Cofield, appellant walked two houses up the street to Sonny Castorina's house and retrieved two wooden baseball bats. (Id. at 33.) The car containing Rienzi and Convey also contained a baseball bat.
While these events were occurring, a group of teenagers, including the victim, was gathering at the Recreation Center. At approximately 9:30 p.m., some members of this group went to McDonalds, where they encountered some of the Abington teenagers. The Fox Chase group fled, and at some point the Abington group got out of their cars and began pursuit. Dewan Alexander and Nicholas Pinero hit victim John Atkinson with a baseball bat, then hit Matt Malone when he tried to assist Atkinson. Appellant slammed another victim, Richard Stuber, to the ground. Stuber also suffered head injuries from a broken bottle. The group from Abington got back in their cars and drove around looking for more Fox Chase teenagers. They exited at St. Cecilia's Church, where they encountered Edward Polec and his brother Billy. Convey swung a baseball bat at Edward Polec, and though he missed, Polec fell while trying to avoid the attack. Once on the ground, Polec was struck several times by Convey. Crook, Rienzi, Alexander, and Pinero then gathered around. Rienzi hit Polec in the head with the bat, then picked up Polec and held him while Pinero hit Polec in the face and head several times with a bat. Alexander kicked Polec several times in the head with the steel-toed boots he was wearing. The group then fled the scene, leaving Polec mortally wounded; he died the next morning.
Appellant stood trial for several weeks in January 1996 along with co-defendants Crook, Pinero, Rienzi, Alexander, and Khathavong. Convey pleaded guilty and testified on behalf of the Commonwealth. On February 5, 1996, Crook, Pinero, and Rienzi were found guilty of third degree murder and criminal conspiracy with respect to Mr. Polec. (Notes of testimony, 2/5/96 at 21, 26, 33.) Alexander was found guilty of voluntary manslaughter and criminal conspiracy with respect to Mr. Polec. (Id. at 29.) Khathavong was found guilty of criminal conspiracy. (Id. at 32.)
Appellant was convicted of criminal conspiracy with respect to Mr. Polec, and was acquitted of all other charges. (Id. at 25.) Colloquy with the jury at the time it rendered its verdict was as follows:
Id. at 23-24 (emphasis added). Appellant was sentenced to five to ten years' imprisonment and fined $15,000.
On appeal, numerous issues arising from the joint trial were raised by all six defendants.2 A panel of this court addressed the merits of these contentions in a single memorandum captioned Commonwealth v. Crook, 706 A.2d 1250 (Pa.Super. 1997); Commonwealth v. Pinero, 706 A.2d 1256 (Pa.Super. 1996); Commonwealth v. Rienzi, 706 A.2d 1257 (Pa.Super. 1996); Commonwealth v. Alexander, 706 A.2d 1247 (Pa.Super. 1996); Commonwealth v. Johnson, (No. 1425 Philadelphia 1996); Commonwealth v. Khathavong, 706 A.2d 1254 (Pa.Super.1996). The panel affirmed the convictions of all of appellant's co-defendants. However, while finding no merit to most of the issues presented by appellant, the court determined that it could not address his sufficiency of the evidence argument. The panel vacated appellant's sentence and remanded for a clarification of the conspiracy charge on which appellant was convicted. The panel reasoned that because the Commonwealth's criminal information defined the criminal objective of appellant's alleged conspiracy as "to beat Edward Polec," appellant was never charged with conspiracy to commit murder.3 The Commonwealth petitioned for en banc reargument contending that the criminal information was sufficient to inform appellant of the charge against him and also that appellant raised no objection to the information either substantively or procedurally, below or on appeal.4 Additionally, the Commonwealth argued that it tried the case on the theory that all six co-defendants conspired to murder Edward Polec, that the defense vigorously defended on this charge, and that the trial court properly instructed the jury on the involvement of all of the defendants in the conspiracy to murder Edward Polec.5 We granted reargument and now address appellant's question as to whether the evidence was sufficient to convict him on the charges of conspiracy to commit murder in the death of Edward Polec.
Appellant additionally raises anew the issues he presented before the panel. Because our grant of reargument vacated any disposition of those issues by the panel with respect to appellant, we will address those claims and the Commonwealth's counterarguments. As near as can be gleaned from appellant's Statement of Questions and Argument Headings in his brief, these additional issues are as follows:6
We now turn to the question of whether the evidence was sufficient as a matter of law to support a guilty verdict for conspiracy. Specifically, appellant argues that the Commonwealth failed to present evidence that appellant shared any intent to murder, or that appellant entered into any agreement to kill the victim.
In evaluating a challenge to the sufficiency of the evidence, we are to view all of the evidence admitted at trial in the light most favorable to the verdict winner, along with any reasonable inferences to be drawn therefrom. We must then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Nicotra, 425 Pa.Super. 600, 603, 625 A.2d 1259, 1261 (1993). The facts and circumstances presented at trial need not preclude every possibility of innocence. Id. "Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence." Commonwealth v. Price, 420 Pa.Super. 256, 260, 616 A.2d...
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