Commonwealth v. Carter
| Decision Date | 01 June 1984 |
| Citation | 329 Pa.Super. 490,478 A.2d 1286 |
| Parties | COMMONWEALTH of Pennsylvania v. Ollie CARTER, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Dec. 13, 1983. [Copyrighted Material Omitted]
Joseph T. Kelley, Jr., Philadelphia, for appellant.
Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
This is an appeal from a judgment of sentence entered in the Court of Common Pleas, Philadelphia County. On October 23, 1976 at approximately 7:45 p.m. appellant, Ollie Carter, was arrested for the robbery of a Pantry Pride employee who had just collected the day's mail and receipts from the Pantry Pride store at Front Street and Godfrey Avenue in Philadelphia.
Because of his unavailability for various reasons, appellant was not brought to trial until June 1, 1981. On June 8, 1981 following a jury trial, appellant was convicted of robbery criminal conspiracy and several counts of simple assault. After post-verdict motions were denied, appellant was sentenced to consecutive sentences of ten to twenty years imprisonment for the robbery, two to four years for the conspiracy, and one to two years on each of the simple assault convictions. This appeal followed.
Initially, appellant contends that the evidence presented at trial was insufficient to sustain his convictions on any of the above charges. The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Nelson, 320 Pa.Super. 488, 467 A.2d 638 (1983); Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983). Viewed in this light the record reveals the following facts.
At approximately 7:30 p.m. on October 23, 1976, Leon Markowitz, an employee of Pantry Pride, was robbed at gunpoint in the store's parking lot by two black males. Two sacks which contained mail and store receipts were stolen. The perpetrators fled the scene in a Volkswagen. Within moments of the robbery Philadelphia Police Officer John Randles arrived at the scene. He immediately obtained an account of the crime and descriptions of the suspects, their get-away car, and their direction of flight. These details were quickly broadcast over police radio. Shortly thereafter, Philadelphia Police Sergeant Charles Tapper spotted a Volkswagen in the vicinity which matched the reported description and which had two black male occupants. The police attempted to intercept the vehicle, but the Volkswagen sped off. A high-speed chase ensued, in which Sergeant Tapper and his partner were joined by Officer Koiko in a second police car.
Appellant, the driver of the Volkswagen, attempted to elude the police. During the chase the passenger of appellant's vehicle opened fire on the pursuing police cars. At one point the Volkswagen stopped and the gunman alighted to get a better shot. He fired several times, jumped back in the car, and sped off. The pursuit continued for fifteen blocks when appellant's get-away efforts were thwarted by a sudden collision with a police car stationed as a road block. After a brief scuffle, appellant and his accomplice were subdued. The two Pantry Pride mail bags, which the robbery victim later identified as those stolen, were recovered from the wrecked car. Also, two guns were retrieved from the car.
Appellant was placed under arrest and taken to the Albert Einstein Medical Center, Northern Division, for treatment of minor injuries suffered at the time of his arrest. While at the hospital, appellant confessed to the police that he and his accomplice, Robert Forrest, had planned the robbery hoping for a "big score". He admitted that he and his partner did in fact rob Leon Markowitz and that he then attempted to elude the police while Forrest fired at them.
Based upon our review of the facts as adduced through trial testimony, we are convinced that the evidence was sufficient to support all of appellant's convictions.
With regard to the conviction for the robbery of the Pantry Pride employee, it is true that no clear eyewitness identification was presented at trial which implicated appellant. Nonetheless, circumstantial evidence alone may be sufficient to support a conviction, provided the inferences relied upon are more than mere conjecture or surmise. Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. McCrea, 308 Pa.Super. 284, 454 A.2d 132 (1982). Here, the circumstantial evidence is compelling and points to one virtually inescapable inference--the appellant robbed Leon Markowitz in the parking lot of the Pantry Pride.
Appellant also maintains that the evidence presented at trial was insufficient to support his convictions for simple assault. The offense of simple assault is defined as follows:
18 Pa.C.S. § 2701 Simple Assault
(a) Offense defined--A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.
* * *
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
Attempt exists within the contemplation of this statute when a person, with intent to commit a crime, does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901(a); Commonwealth v. Chance, 312 Pa.Super. 435, 458 A.2d 1371 (1983); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983).
Here, the subject assault charges arose following the robbery when, during the ensuing chase, shots were fired at the police from appellant's car. It is clear from the record that Robert Forrest, the passenger in appellant's car, was the one who fired the shots. Appellant concedes that Forrest committed an assault. However, appellant argues that because he was the driver and not the shooter, he may not be convicted of the assaults upon the pursuing police officers. We do not agree.
A showing of mere presence at the scene of a crime is insufficient to support a conviction; evidence indicating participation in the crime is required. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Thomas, 450 Pa. 125, 299 A.2d 226 (1973). Our review then focuses on whether there was sufficient evidence of appellant's participation in the assault. Was there sufficient evidence to prove that appellant with criminal intent, did something which constituted a "substantial step" toward the commission of an assault?
Although appellant was the driver and not the gunman, the evidence indicates that he was more than a passive spectator; that he in fact was a very active participant in the shooting spree. Appellant's "mere presence" in the car, as mischaracterized by appellant, was not in the role of captive passenger. Appellant was the driver. While his accomplice repeatedly shot at the police, appellant piloted the get-away car. At one point, as Sergeant Tapper testified, appellant stopped the car and waited while the gunman got out and fired several shots.
From this evidence, the jury could fairly and reasonably infer that appellant's conduct as driver promoted, facilitated and otherwise encouraged the shooting upon the police officers. The jury, not improperly, found that appellant's conduct demonstrated the requisite criminal intent and constituted a substantial step toward the shooting at the police officers.
Appellant's third challenge to the sufficiency of the evidence concerns his conviction for criminal conspiracy. Specifically, appellant alleges that insufficient evidence was presented at trial to prove that an "agreement" existed between him and Robert Forrest to commit the robbery. We disagree.
Of course, the existence of a conspiracy depends upon proof of an agreement or common design, to commit an unlawful act. Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983); 18 Pa.C.S. § 903. However, direct proof of an agreement is not required. The conduct of the parties and the circumstances surrounding such conduct may be sufficient to establish an inference of agreement. Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982); Commonwealth v. Davis, 312 Pa.Super. 85, 458 A.2d 248 (1983). However, more than mere presence at the scene is necessary to establish a conspiracy. Commonwealth v. Olds, supra; Commonwealth v. Lamb, supra.
Here again, appellant's involvement in the robbery went beyond "mere presence" at the scene. After a review of trial testimony, we conclude that the circumstances surrounding the robbery were sufficient to support the jury's inference that appellant and Robert Forrest agreed to commit the robbery. Appellant's complicity and subsequent admission certainly foster the reasonable inference that the robbery had been pre-planned.
Appellant's next contention is that the trial court erred when it ruled appellant's confession voluntary and allowed its admission into evidence. Appellant contends that his statement made to police at the hospital shortly after his arrest was involuntary because he was in a confused psychological state at the time.
The suppression court heard testimony of the dramatic car chase and the injuries suffered by appellant as a result of the collision and ensuing scuffle. However, the court also heard testimony from police officers that appellant was alert and coherent at the time he offered his confession. The court concluded that although appellant had been involved in an out-of-the-ordinary...
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