Commonwealth v. Davenport

• Decision Date: 19 November 1982
• Citation: 307 Pa.Super. 102,452 A.2d 1058
• Parties: COMMONWEALTH of Pennsylvania v. Napoleon DAVENPORT, Appellant.
• Court: Pennsylvania Superior Court

452 A.2d 1058

307 Pa.Super. 102

COMMONWEALTH of Pennsylvania v. Napoleon DAVENPORT, Appellant.

Superior Court of Pennsylvania.

November 19, 1982

Submitted Sept. 20, 1982.

William John Fulton, Harrisburg, for appellant.

William A. Behe, Deputy Dist. Atty., Harrisburg, for Commonwealth appellee.

Before WIEAND, CIRILLO and POPOVICH, JJ.

POPOVICH Judge:

After a non-jury trial, the appellant, Napoleon Davenport, was convicted of criminal conspiracy (18 Pa.C.S.A. § 903) and unlawful delivery of a controlled substance (35 Pa.C.S.A § 780-113(a)(30)). On June 1, 1981, a sentence of 3 to 10 years imprisonment was entered for each offense and ordered to be served concurrently. This appeal followed.

On appeal appellant assails the sufficiency of the evidence and claims that the trial court erred in allowing opinion testimony to be admitted into evidence regarding the typical modus operandi of drug sellers and erred in refusing to grant a mistrial. We affirm the judgment of sentence.

The test to be utilized in evaluating appellant's sufficiency of evidence argument is whether, viewing the entire record in the light most favorable to the Commonwealth, a finder of fact could reasonably have found that all elements of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).

Examination of the evidence pursuant to the preceding standard reveals the following: From May until September of 1980, Philadelphia police officer Miles Edward, Jr., was assigned to the Harrisburg area to conduct, in conjunction with the Pennsylvania State Police, a drug investigation in an undercover capacity for the Federal Drug Enforcement Administration. Also, during this period of time, the undercover agent traveled with an informant.

On July 23, 1980, at approximately 9:40 p.m., Officer Edward and his informant were standing on the corner of Third and Verbeke Streets in Harrisburg. A vehicle approached and the informant stated something to the driver, who reacted by pulling the vehicle over to the side of the street and parking. However, neither the driver nor the other occupant stepped out of the vehicle. Rather, the ensuing discussion and transaction were effectuated with the agent and informant standing on the passenger side of the vehicle. The appellant was visible to the officer, for he (appellant) was sitting in the front seat.

Initially, the informant engaged the driver in a conversation which elicited a remark that "he (the driver) only had a fifty dollar package of heroin," specifically referred to by the driver in street jargon as "boy". (N.T. 12) The officer then asked if he could have three packages for $120.00. The driver responded that he would sell him three $50.00 packages for $125.00. The officer agreed and handed $130.00 to the appellant to give to the driver, since the appellant was in between the two. After the appellant asked the officer if he had the exact amount, the $130.00 was passed to the driver, who, in turn, gave the appellant the three packages of heroin to give to the officer. At this point, appellant asked the driver if he could have change for ten dollars so he could give the officer the $5.00 owed to him. The driver said, "No." As a result, appellant exited the vehicle and made his way over to a tavern located at Verbeke and Susquehanna Streets. Upon returning, the appellant gave the officer his change.

After the transaction was completed, the group dispersed and the officer copied down the license number of the vehicle. The substance was, thereafter, tested and found to be heroin. Following this determination, the appellant was arrested and charged with the instant offenses.

In proving a conspiracy, direct and positive testimony of the corrupt agreement is not necessary. Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981); Commonwealth v. Holman, 237 Pa.Super. 291, 352 A.2d 159 (1975). This is so, for the unlawful agreement, which is at the heart of every conspiracy and the nexus which will invoke principles of vicarious liability, will rarely be proven by direct evidence of a formal agreement with precise terms. Indeed, the very nature of the crime of conspiracy makes it susceptible to proof usually by circumstantial evidence. Thus, the courts have traditionally looked to the relation, conduct, and circumstances of the parties and the overt acts of the co-conspirators in order to find a corrupt confederation. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979); Commonwealth v. Waters, 463 Pa. 465, 345 A.2d 613 (1975); Commonwealth v. Tumminello, supra; Commonwealth v. Minnich, 236 Pa.Super. 285, 344 A.2d 525 (1975). Additionally, it must be remembered that "[t]he fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." (Citations omitted) Commonwealth v. Lovette, --- Pa. [452 A.2d 1061] ---, ---, 450 A.2d 975, 977 (1982). Restated, the facts and circumstances need not be absolutely incompatible with defendant's innocence, but the question of any doubt is for the fact-finder unless the evidence "be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances." Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). Accord Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).

As this Court has stated recently:

"Regardless of the type of proof advanced by the Commonwealth, however, proof of a common understanding among the alleged co-conspirators is an indispensable element of the crime. Thus, the courts have held that mere association is not sufficient; ... nor is mere presence at the scene of the crime sufficient to prove the agreement without a showing that the accused had prior knowledge of his alleged co-conspirator's criminal intent. Indeed, one's knowledge that another proposes unlawful action will not establish a conspiracy, ..., absent proof that the accused became an active partner in the criminal enterprise with knowledge of the agreement." (Citations omitted) (Emphasis in original) Commonwealth v. Lynch, 270 Pa.Super. 554, 570, 411 A.2d 1224, 1232 (1979); see also Commonwealth v. Yobbagy, 410 Pa. 172, 188 A.2d 750 (1963); Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977).

Appellant contends that the delivery and conspiracy convictions cannot stand because the Commonwealth failed to prove the existence "of a prior unlawful agreement[,] ... shared criminal intent [or] ... association between the parties and appellant." (Appellant's Brief at 13) Appellant attempts to analogize the instant case to Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979). In Anderson, the facts reveal that an undercover agent approached the accused and told him he wished to buy some heroin. The appellant agreed to sell the agent 11 bags of heroin for $50.00. At appellant's request, the agent accompanied him to his residence. Upon arrival, appellant's wife was sitting on the front steps. "While in his wife's presence, appellant directed [the agent] to give the money to her. [The agent] handed [the wife] $50 in pre-recorded bills, and remained outside with her while appellant went inside the building and returned with 11 glazed paper packets. While still in his wife's presence, appellant handed the packets to [the agent] and told him to see him again anytime." (Footnote omitted) Id. at 499, 402 A.2d at 548.

After reviewing the evidence, the Anderson Court sustained appellant's conviction for selling heroin, but reversed his conviction of conspiring with his wife to sell such drug. The reversal was premised upon this Court's ruling in Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974). In Stephens, the accused was standing near his alleged co-conspirator when said person offered to sell marijuana to a plainclothes police officer. From Stephens' mute and unresponsive reaction to the unlawful deal, the Commonwealth sought to establish an inference that he had prior knowledge of the deal and in fact made an agreement prior to it. We rejected this contention, noting:

"Appellant did not induce Cafurello[--the alleged co-conspirator], to sell marijuana, nor did he aid or assist him at the time of the sale. There was also no showing that appellant had received any money from Cafurello. In short, the only thing that was shown was that appellant stood mute and unresponsive after overhearing the conversation between the [police officer] and Cafurello. That evidence, while supporting an inference of knowledge, cannot support the further inference of agreement ...." (Emphasis added) Id. at 489, 331 A.2d at 723.

Instantly unlike in Anderson, the accused "overheard the initial discussion" between the undercover agents and his co-conspirator as to the terms of the proposed sale. On this point, it is to be noted that appellant does not argue that he was unaware that the slang term "boy", as utilized by the parties in conversation regarding the purchase to be made, referred to heroin. In fact, appellant concedes that "[t]he case at bar is stronger in light of [his] arguable knowledge that a drug transaction was taking place." (Appellant's Brief at 13); see generally Commonwealth v. Goodyear, 235 Pa.Super. 544, 547, 344 A.2d 672, 674 (1975). Such evidence is, at the very least, supportive of "an inference of knowledge" attributable to the appellant that an illegal transaction would and did take place. See Commonwealth v. Stephens, supra. However, "proof of guilt on a charge of conspiracy fails if it shows only that the accused was present at the scene of the crime and...