Com. v. Young

• Decision Date: 31 March 1975
• Citation: 233 Pa.Super. 429,335 A.2d 498
• Parties: COMMONWEALTH of Pennsylvania v. Leon YOUNG, Appellant.
• Court: Pennsylvania Superior Court

Page 498

335 A.2d 498

233 Pa.Super. 429

COMMONWEALTH of Pennsylvania v. Leon YOUNG, Appellant.

Superior Court of Pennsylvania.

March 31, 1975.

Limited Appeal Allowed July 7, 1975.

Marshall E. Kresman (Court Appointed), Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., M. Stotland, Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge.

This case comes before the court on direct appeal from convictions for aggravated assault and battery, assault and battery with intent to murder, and forcible entry. Appellant alleges four errors. Since they are all without merit, we affirm the judgment of the lower court.

The facts as revealed by the record indicate that in the early morning hours of August 22, 1972, appellant and three others, Leon Kelsey, Ricky Kelsey, and David Warren, forcibly broke into an apartment occupied at that time by Ronald Williams. Leon Kelsey pointed a gun at Williams and demanded that Williams surrender a stereo which they asserted he had stolen from the Kelsey's home. A search for the stereo proved fruitless.

Still allegedly searching for the stereo, they then ordered Williams to accompany them to a house where Williams had been during the day, and questioned the woman living there about the time of his arrival and departure. After the questioning, the five men left the house. Williams, appellant, Leon Kelsey, and David Warren remained in front of the house while Ricky Kelsey left the group and entered his own home nearby.

Ricky Kelsey reappeared several minutes later and moved across the street behind Williams. At this time, Leon Kelsey was learning against a tree facing Williams, while appellant and David Warren were standing in front of Williams, also facing him. Just before the shot was fired, appellant and Warren dropped to the ground in a prone position, indicating they knew what was about to happen. As the bullet struck Williams in the back, he was spun around, and he saw Ricky Kelsey coming across the street with the gun in his hand. Williams then crawled under a car and began to shout for help. Appellant and his accomplices panicked and fled together.

Appellant alleges that the evidence taken as a whole failed to demonstrate beyond a reasonable doubt appellant's guilt of the crimes charged. In testing the sufficiency of the evidence, we must review the testimony in a light most favorable to the verdict winner. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Portalatin, 223 Pa.Super. 33, 297 A.2d 144 (1972). In so doing, we will accept as true the Commonwealth's evidence and all reasonable inferences arising therefrom. Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). The test of the sufficiency of the evidence is whether, accepting as true all evidence, regardless of whether it is direct or circumstantial, upon which, if believed, the fact-finder could properly have based his verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963).

In so viewing the evidence, we find it ample to support this conviction. Appellant was an active member of the conspiracy. He aided in the apartment break-in and helped in the interrogation of the victim, Williams. He then helped escort Williams to the house which was the scene of the second search. Appellant and three of his accomplices remained with Williams after they left the house, and appellant's actions just before Williams was shot indicated that he was fully aware of the impending act. Finally, appellant fled with the other co-conspirators. We find no reason to reverse the lower court on this point.

Appellant also alleges that the trial court committed error by failing to give an adequate and/or proper definition of the legal terms 'conspiracy' or 'conspirator.' Although appellant was not actually charged with conspiracy, he was tried as a co-conspirator.

There is a question as to whether appellant preserved this point for appeal with a timely objection to the court's charge as it applied to conspiracy. At the conference in the judge's chambers before the charge to the jury, appellant requested an explanation of conspiracy. However, when the judge refused to 'go through with the whole complicated explanation of the variations of conspiracies that do not apply in this case,' appellant stated that he only wanted an explanation of the applicable portion. Following the judge's charge, several other points were requested and objections were made by appellant. There was, however, no specific objection to the charge in relation to conspiracy, and appellant apparently was satisfied with the instructions given on this point. Because appellant made no specific objection, he may not now complain that the charge was incomplete. See Commonwealth v. Clair, --- Pa. ---, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Company, --- Pa. ---, 322 A.2d 114 (1974); Pa.R.Crim.P. 1119(b), 19 P.S.Appendix.

Aside from the waiver, a review of the charge as a whole ¹ indicates that it was adequate. As appellant was not indicted for conspiracy, an extensive charge on this crime would have been confusing and of dubious benefit. Neither appellant nor the Commonwealth wanted an involved conspiracy charge made to the jury. The judge's instructions on the charges, as they were derived from a conspiracy, were adequate to appraise the jury on the law as it pertained to appellant. The judge charged the jury that appellant could not be convicted merely because he was at the scene of the crime, but that there must be other evidence of his participation in the offense. The charge also stated there had to be actual conduct and not merely unsupported suspicion of the victim. We see no error which requires a reversal on this point.

Appellant next contends that the court committed reversible error in its failure to instruct that if a co-conspirator effectively withdraws from the conspiracy, he will not be held guilty for acts committed after his withdrawal. The court in Commonwealth v. Doris, 287 Pa. 547, 552, 135 A. 313, 315 (1926) discussed withdrawal from a conspiracy:

'Whatever may be the other requirements of an effective abandonment of a criminal enterprise . . . there must be some appreciable interval between the alleged abandonment and the act from responsibility for which escape is sought. . . . The process of detachment must be such as to show not only a determination upon the part of the accused to go no further, but also such as to give his coconspirators a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act in question is committed.'

See also Commonwealth v. Griffey, 453 Pa. 142, 307 A.2d 283 (1973); Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 490 (1971) (Roberts, J., Concurring Opinion).

Here, there was no indication that any of the defendants withdrew from the conspiracy, but rather the evidence clearly indicates that all four defendants were involved in some way with the actual shooting. Appellant has offered no evidence that he abandoned the criminal enterprise and conveyed this fact to his co-conspirators. A charge on a point or issue which is unsupported by any evidence is likely to confuse the jury and obstruct justice. Commonwealth v. Heckathorn, 429 Pa. 534, 241 A.2d 97 (1968); Commonwealth v. Cofield, 226 Pa.Super. 266, 307 A.2d 316 (1973). The lower court was correct in refusing this requested charge.

Finally, appellant contends the trial court committed reversible error when it allowed the rosecution to read at trial an extra-judicial statement made by appellant to a police detective. ² This statement was an attempt by appellant to exculpate himself from any guilt for the shooting and as such, the statement was relevant and material. Specifically, appellant complains about the reference in the statement to drinking wine in a public area.

The reference to drinking wine was a passing one at best. After the statement was read to the jury, no further remark concerning the drinking was made. There was absolutely no asttempt to imply that appellant was an alcoholic nor to suggest that he was guilty of moral turpitude. The reference, if error at all, was harmless. Where harmless error is committed, a new trial is not mandated. Cf. Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972); Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971). We find no merit in appellant's contention.

For the above stated reasons, we affirm the judgment of sentence of the lower court.

SPAETH, J., concurs in the result.

HOFFMAN, J., files a dissenting opinion in which JACOBS, J., joins.

HOFFMAN, Judge (dissenting).

The sole meritorious issue in this appeal is whether the trial judge committed reversible error by instructing the jury that it could find appellant criminally liable for the acts of his coconspirators, but failing to charge either as to the elements of conspiracy or as to the effect of the termination of the conspiracy.

At 12:45 a.m. on August 21, 1972, Ronald Williams, while lying in bed in a friend's apartment in North Philadelphia where he was staying, heard the door being broken down. Appellant, Richard Kelsey, Leon Kelsey, and David Warren then entered the apartment. The four searched for a stereo set which they claimed that Williams had stolen, but found nothing. One or more of the four men ordered Williams to leave his apartment and come with them. The four men and Williams went to the house near Thirteenth and Erie where Williams claimed that he had been during the day. One or more of the four questioned the woman who lived there about the time of Williams' arrival and departure. The four men and Williams then left, and went...