Com. v. Lloyd

• Decision Date: 25 August 1988
• Citation: 376 Pa.Super. 188,545 A.2d 890
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Roderick LLOYD, Appellant.
• Court: Pennsylvania Superior Court

Page 890

545 A.2d 890

376 Pa.Super. 188

COMMONWEALTH of Pennsylvania, Appellee, v. Roderick LLOYD, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 9, 1987.

Filed June 15, 1988.

Reargument Denied Aug. 25, 1988.

Jenny Steinen, Asst. Dist. Atty., Philadelphia, for appellant.

Laurie Montgomery, Asst. Dist. Atty., Coatesville, for Com., appellee.

Before WIEAND, KELLY and HESTER, JJ.

WIEAND, Judge:

The principal issue in this appeal concerns the prosecuting attorney's use of peremptory challenges to remove five out of six black persons who had been drawn as prospective jurors to hear a criminal case. The trial court determined that the challenges had been exercised for reasons which were racially neutral and directed that the jury be sworn. After hearing the evidence, the closing arguments of counsel, and the instructions of the court, the jury found Roderick Lloyd, who is black, not guilty of theft by unlawful taking and receiving stolen property but guilty of robbery, aggravated assault, simple assault, and criminal conspiracy. Post-trial motions were denied, and Lloyd was sentenced to serve two consecutive terms of imprisonment, each of which was for not less than one year nor more than two years. In addition to the peremptory challenge issue, Lloyd argues (1) that his conviction of robbery was inconsistent with the finding that he was not guilty of theft; (2) that the trial court erroneously instructed the jury on the adverse inference to be drawn from flight to avoid prosecution; and (3) that the trial court's instructions on accomplice liability were inadequate.

Appellant argues that if he was not guilty of theft he cannot be found guilty of robbery. This argument is faulty for two reasons. In the first place, inconsistent jury verdicts are not a basis for relief. The reasons therefor were explained by this Court in Commonwealth v. Shaffer, 279 Pa.Super. 18, 420 A.2d 722 (1980), as follows:

The fault with appellant's argument is that "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971), quoting Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959). When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, "the court looks upon [the] acquittal as no more than the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Id. Accord : Commonwealth v. Strand, 464 Pa. 544, 547, 347 A.2d 675, 676 (1975). Thus, consistency in a jury's verdicts in a criminal case is unnecessary, provided there is sufficient evidence to support the convictions the jury has returned, Commonwealth v. Stegmaier, 247 Pa.Super. 159, 371 A.2d 1376 (1977); Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975); Commonwealth v. Jackson, 230 Pa.Super. 386, 326 A.2d 623 (1974), and inconsistency in verdicts affords an accused no cause for relief, even though it may be difficult to reconcile the verdicts, Commonwealth v. Kwatkoski, 267 Pa.Super. 401, 406 A.2d 1102 (1979).

Id. at 21-22, 420 A.2d at 724. See also: Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984); Commonwealth v. Riley, 330 Pa.Super. 201, 479 A.2d 509 (1984); Commonwealth v. Graves, 310 Pa.Super. 184, 456 A.2d 561 (1983); Commonwealth v. Maxwell, 280 Pa.Super. 235, 421 A.2d 699 (1980). As long as the evidence was sufficient to support a conviction for robbery, the jury's verdict of not guilty on the charge of theft does not entitle appellant to any relief.

In evaluating the sufficiency of the evidence we 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 offenses 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).

During the trial of the charges against appellant, the victim testified that appellant and his co-defendant, Shannon Styer, had beaten him, ripped off his pants, and taken money from his pockets. Appellant, while admitting to beating the victim, denied that he or Styer had taken any money. The victim's testimony was sufficient to support the verdict. Its credibility as well as the explanation offered by appellant were for the jury. It could believe all, some or none of the testimony offered by the parties. See: Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Campbell, 353 Pa.Super. 178, 184, 509 A.2d 394, 397 (1986); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229-1230 (1984).

There is a second reason why appellant's argument cannot prevail. Contrary to the basic assumption on which his argument rests, the verdicts were not necessarily inconsistent. It is not an essential element of robbery that there be a completed theft. It is enough that force was used during an attempted theft. Thus, in the instant case, a jury could conceivably have found that appellant committed the crime of robbery even though he was unsuccessful in obtaining the victim's money.

Appellant next complains that the trial court erred when it instructed the jury that flight to avoid prosecution permitted an inference of consciousness of guilt. This was error, he contends, because there was no evidence that he had fled from the crime scene. This issue, however, has not been preserved for appellate review. When the trial court concluded its charge to the jury, an inquiry was made to counsel as to whether there were "[a]ny further suggestions or corrections or deletions or anything." Appellant's counsel responded in the negative. By failing to object and thereby calling this alleged error to the attention of the trial judge, appellant waived any objection to the court's instruction on flight to avoid prosecution. See: Commwealth v. Rounds, 510 Pa. 524, 527, 510 A.2d 348, 349 (1986); Commonwealth v. Quarles, 361 Pa.Super. 272, 276, 522 A.2d 579, 580-581 (1987); Commonwealth v. Fisher, 342 Pa.Super. 533, 541, 493 A.2d 719, 723 (1985); Commonwealth v. Larkins, 340 Pa.Super. 56, 67, 489 A.2d 837, 842 (1985); Commonwealth v. Rineer, 310 Pa.Super. 241, 249, 456 A.2d 591, 595 (1983). See also: Pa.R.Crim.P. 1119(b); Pa.R.A.P. 302(b).

For similar reasons appellant will not be heard to complain about the trial court's instructions on accomplice responsibility. After the trial court's jury instructions had been delivered, appellant did not object in any way to the instruction on accomplice liability. After the jurors had been deliberating for some time, they returned to the courtroom to request additional instructions on the difference between an accomplice and a conspirator. The trial judge asked counsel: "[W]hat do you want me to tell them as to how the accomplice relates to conspiracy?" Appellant's counsel replied, "[d]efine it as it was defined before." Under these circumstances, appellant cannot complain about the court's instructions as to accomplice liability.

When the jury inquired further whether the difference between conspiracy and accomplice liability was an agreement to commit a crime, the trial court gave an affirmative answer without explanation. At this point, defense counsel asked the trial court to elaborate on the matter of intent. The trial court declined to explain the difference further. Although appellant does not suggest that the trial court's answer was erroneous, he contends that the court should have offered a more extensive explanation. We disagree. The trial court had already discussed with the jury the issue of accomplice liability via instructions which appellant had found satisfactory. The trial court did not abuse its discretion by declining further elaboration.

During the jury selection process, the prosecuting attorney peremptorily challenged two white persons and five of six black persons from the panel of prospective jurors. Another black person was successfully challenged for cause because she was acquainted with one of the defendants. As a result, the jury which was sworn to try the case consisted of eleven whites and one black. Appellant objected that the prosecuting attorney had exercised his peremptory challenges in a racially discriminatory manner in violation of the equal protection clause of the Fourteenth Amendment as interpreted by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See also: Commonwealth v. McCormick, 359 Pa.Super. 461, 519 A.2d 442 (1986). The trial court thereupon summoned counsel to side-bar where the prosecuting attorney was given an opportunity to explain the peremptory challenges exercised by the Commonwealth. After these explanations had been offered--they were not rebutted--the trial court held that the Commonwealth's exercise of peremptory challenges had been racially neutral and non-discriminatory. On appeal, it is argued that the reasons given by the prosecuting attorney were inadequate to rebut a prima facie violation of the equal protection clause.

In Batson v. Kentucky, the United States Supreme Court stated:

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause. See McCray v. Abrams, 750 F.2d [1113], at 1132 [CA2 1984]; Booker v. Jabe, 775 F.2d 762, 773 (CA6 1985), cert. pending 85-1028. But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the...