Commonwealth v. Calloway
| Decision Date | 15 April 1983 |
| Citation | 459 A.2d 795,313 Pa.Super. 173 |
| Parties | COMMONWEALTH of Pennsylvania v. Keith CALLOWAY, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Sept. 14, 1982.
Francis M. Socha, Asst. Public Defender Harrisburg, for appellant.
William A. Behe, Deputy Dist. Atty., Harrisburg, for Commonwealth appellee.
Before CAVANAUGH, BECK and MONTEMURO, JJ.
Appellant Keith Calloway, was found guilty by a jury of criminal conspiracy. [1] Post-verdict motions were denied. Appellant was then sentenced to a term of five (5) to ten (10) years imprisonment. This appeal followed.
Appellant presents two questions on this appeal:
1. Did the lower court err in admitting into evidence statements made to the police and district attorney by the appellant?
2. Was the evidence insufficient as a matter of law to sustain the verdict? [2]
For ease of discussion we will address the latter contention first. We affirm.
To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and with weight to be accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).
Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).
So viewed, the record shows that in November of 1979, the appellant was hired, as a dishwasher, by Elby's Big Boy Restaurant located in Lower Paxton Township, Dauphin County. As things turned out, when appellant worked the 4:00 p.m. to 11:00 p.m. shift, he usually received a ride home from the assistant manager, William White. Routinely, before dropping appellant off at his home, and the other employees who also received a ride, Mr. White would deposit the night's proceeds into a nearby bank. Contrary to company policy which required that the deposits be made with a police escort, Mr. White did not adopt this security measure. Mr. White believed that the police escort was unnecessary because he felt adequately protected when accompanied by the appellant and the other Elby employees. Unbeknownst to Mr. White, the appellant had something else on his mind.
In December of 1979, before Christmas, the appellant met with an associate of his, Kirk Bennett, at Otto's Atmosphere, a bar located in Harrisburg. The discussion at this meeting evolved into and focused on a plan, conceived by appellant, to rob Elby's of the night proceeds. Appellant informed Bennett that the assistant manager would leave the restaurant at 11:00 p.m. with the money. Appellant would accompany him. There would be no guards. They agreed that it would be best to have three participants handle the robbery. Appellant would keep the assistant manager calm while walking to the car, Bennett would perform the actual "stick up" and another Elby's employee, one Jeffrey Ross, would take the money. The discussion ended. Thereafter, Bennett discussed the plan with the other associate, Jeffrey Ross.
In early January of 1980, the appellant and Bennett met at Otto's a second time. They again went over the robbery and decided to split the money evenly. This time appellant included Ross' name in the distribution.
On January 11, 1980, Bennett and Ross met at George's Bar and decided to commit the robbery that night. They did not forewarn the appellant but drove straight to Elby's and waited. Mr. White, at approximately 11:00 p.m., exited the restaurant along with the appellant and another employee. By this time, both Bennett and Ross had gotten out of their car and were positioned behind a backyard fence. They watched, from a 20 to 30 yard distance, Mr. White walk around the truck to get to the driver's side. At this point, in a spineless and cold blooded act, Bennett aimed his .22 caliber rifle and fatally shot Mr. White in the back. The appellant, upon hearing the shot, scurried back into the restaurant, while Mr. White staggered to the front of the truck. Ross jumped the fence they were hiding behind, ran to the driver's side of Mr. White's truck, but did not find the money. Ross retreated and both he and Bennett took off in their car. The next morning the appellant expressed dissatisfaction to Bennett because of the shooting.
Appellant argues that because he was not aware of the fact that Bennett and Ross were going to execute the robbery on the night of January 11, 1980, he could not be found guilty beyond a reasonable doubt of criminal conspiracy.
Criminal conspiracy is defined as follows:
Definition of conspiracy--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime: or
agrees to aid such other person or persons in the planning or commission of such crime or an attempt or solicitation to commit such crime.
18 Pa.C.S.A. § 903(a)(1) and (2).
A conspiracy is an agreement between two or more parties to do an unlawful act. Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982). It is well settled that a co-conspirator not present at the execution of the crime is not relieved of liability. Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955). It has been held, on facts very similar to the instant case, that:
Where the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators if such acts are done in pursuance of the common design or purpose of the conspiracy. Such responsibility attaches even though such conspirator was not physically present when the acts were committed by his fellow conspirator or conspirators and extends even to a homicide which is a contingency of the natural and probable execution of the conspiracy, even though such homicide is not specifically contemplated by the parties. (Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161)
Commonwealth v. Thomas, 410 Pa. 160, 165, 189 A.2d 255, 258 (1963).
In Commonwealth v. Thomas, supra, the appellant was convicted of conspiracy and second degree murder. The facts introduced by the Commonwealth in that case sought to substantiate the following scenario for the conspiracy:
The theory of the Commonwealth was that Thomas, a deputy sheriff of Dade County, Miami, Florida, became acquainted with Mrs. Lulubel Rossman [the deceased] when she enlisted the aid of Thomas' fellow deputy to check on the activities of a man with whom she thought herself to be amorously involved. Through such acquaintanceship, Thomas learned that deceased was in the habit of having large sums of money on her person and in her living quarters. The Commonwealth sought to prove that Thomas conceived the idea of robbing the deceased and to that end, through numerous telephone calls between Florida and Oklahoma and personal meetings in Florida and Oklahoma, formed a conspiracy with Gus DeMoss, Raymond Wilson and Frank Ellsworth; in furtherance of that conspiracy, Wilson and Ellsworth went to Philadelphia and, on July 3, 1955, entered the deceased's room in the Adelphia Hotel where they robbed her of a large sum of money; in the course of that robbery, the deceased met her death. (Footnotes omitted)
Id. at 162-163, 189 A.2d at 257.
In our present case, we have direct evidence of a conspiratorial agreement. Although the conspiracy was established through the testimony of a co-conspirator, such testimony is sufficient. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The substance of that agreement--to rob an Elby's assistant manager of a night's proceeds before deposit--was carried out, except for the fact that appellant was unaware prior to the robbery and murder that the crime was going to be committed that night. However, just as a co-conspirator is not relieved of criminal liability when not physically present at the scene of the crime, we believe that appellant's unawareness, while physically present, a fortiori, is no ground to challenge the sufficiency of the evidence. The illegal agreement is the substance of the crime of conspiracy, and in this case, that agreement was proven beyond a reasonable doubt. Appellant's co-conspirators, Bennett and Ross, subsequently executed that plan. We find the evidence sufficient to justify, beyond a reasonable doubt, the jury's verdict that appellant was guilty of criminal conspiracy.
Appellant also contends that the court below erred in admitting into evidence certain statements he made to law enforcement authorities. Appellant bases his claim on two grounds: 1) that the statements are hearsay and not subject to any exception, i.e., they do not qualify as admissions (statements are not relevant evidence), and 2) if the statements are admissible, per an exception, that, in any event, his last two statements were not admissible because such communications were made in furtherance of plea negotiations.
These statements were made on January 12, 1980, January 15, January 25, February 7, March 10, and March 18, and were introduced through the testimony of Detective Womer. The substance of this testimony can be summarized as follows: In the early morning hours of January 12, 1980,...
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