Commonwealth v. Stephens
| Decision Date | 11 December 1974 |
| Citation | 331 A.2d 719,231 Pa.Super. 481 |
| Parties | COMMONWEALTH of Pennsylvania v. Lenwood STEPHENS, Appellant. |
| Court | Pennsylvania Superior Court |
George E. Goldstein, Philadelphia, for appellant.
Grant E. Wesner, Deputy Dist. Atty., Reading, for appellee.
Before WATKINS, President Judge and JACOBS, HOFFMAN, CERCONE, PRICE VAN der VOORT, and SPAETH, JJ.
Appellant Lenwood Stephens, was tried before a jury and convicted on March 23, 1971, of conspiracy [1] and illegal possession of marihuana. [2] On this appeal he contends that the evidence was insufficient to support these verdicts, and that the search warrant was improperly issued because there was no probable cause.
Appellant operated a store, the Perelandra, in Reading, Pennsylvania. The store consisted of three rooms, all on one floor. Most of the merchandise was displayed and sold in the front room. A back room contained additional merchandise but served mostly as a sitting room for patrons. There was a bathroom connected to the back room. Marcel Cafurello worked at the store on a part-time basis but received no salary. It appears that Cafurello and his girl friend had recently come from Arizona and had met appellant when they were hitchhiking and appellant gave them a lift. Appellant told Cafurello that while he was looking for work he and his girl friend could stay in appellant's apartment with appellant and his wife and child. Cafurello worked in appellant's store in return for this kindness.
On the afternoon of July 14, 1970, a plainsclothes police cadet entered the front room of the Perelandra and proceeded directly to Cafurello, who was in front of the counter. The cadet asked Cafurello if he was 'holding' any marihuana. Cafurello replied that he was, and that it was in the back room. The cadet asked Cafurello how much he wanted for it, and Cafurello said $40. The cadet had made two previous purchases from Cafurello, but appellant had not been present on either of those occasions. It appears from the affidavit in support of the search warrant that one of these purchases was in the store, the other outside, in the cadet's car. This time appellant was in the store and about two feet from Cafurello, on the other side of the counter. He did not react or respond to the conversation between the cadet and Cafurello. [3] The cadet left, ostensibly to get his money, while Cafurello headed toward the back room. A raiding party then entered pursuant to a search warrant and with an arrest warrant for Cafurello. One detective read the warrant to appellant, while another apprehended Cafurello in the bathroom, where he was fumbling with a Persian lamb coat in which two ounces of marihuana were found. At appellant's trial, Cafurello, who had pleaded guilty at his own trial, testified that the marihuana was his alone and that appellant did not know about it. Appellant also testified that he did not know about the marihuana.
This evidence must be regarded in the light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences arising from it. Commonwealth v. Herman, 227 Pa.Super. 326, 323 A.2d 228 (1974); Commonwealth v. Minor, 227 Pa.Super 343, 322 A.2d 717 (1974). So regarded, it nevertheless was insufficient to support either the conspiracy or possession conviction. Accordingly the issue of the propriety of the search warrant need not be decided.
Conspiracy is an agreement between two or more parties to do an unlawful act. Commonwealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972); Commonwealth v Neff, 407 Pa. 1, 179 A.2d 630 (1962). The agreement can seldom be directly proved, nor need it be. Commonwealth v. McCoy, 209 Pa.Super. 399, 228 A.2d 43 (1967). Proof may be by showing circumstances from which the agreement may be inferred. Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Neff, Supra; Commonwealth v. Horvath, 187 Pa.Super. 206, 144 A.2d 489 (1958).
Among these circumstances may be proof of past relationship. In the present case the only evidence of past relationship was that Cafurello was given temporary room in appellant's apartment and in return worked part-time at the Perelandra. To infer conspiracy from this evidence would be to indulge in mere suspicion, which will not support a verdict. Commonwealth v. Santana, 216 Pa.Super. 183, 264 A.2d 724 (1970). The fact that Cafurello had made two previous sales to the cadet, one at and one outside the Perelandra, cannot change suspicion to proof, for there was no evidence that appellant knew of those sales. Indeed, the cadet testified that he had never met or even seen appellant until the day of the arrest. The decision in Commonwealth v. Yobbagy, 410 Pa. 172, 188 A.2d 750 (1963), is instructive. The defendant and one DiEmidio were employees of the Commonwealth assigned to inspect mines. While inspecting a strip mining operation they told the operators, Mr. and Mrs. Farester, that they were stripping beyond the area for which they had a permit; on the way to the company office, Yobbagy further told Mrs. Farester that DiEmidio 'could be talked to . . . only . . . what he saw was reported . . ..' Id. at 175, 188 A.2d at 751. Later, upon learning from his wife of this suggestion, Mr. Farester gave DiEmidio $400 ($200 for him and $200 for the defendant) and was told by DiEmidio that the stripping operation would not be bothered. There was no evidence that the defendant knew these facts, or that he received any money. In setting aside the defendant's conviction of conspiracy as not supported by sufficient evidence the Supreme Court said: [4]
Yobbagy may well have intended, when he made this suggestion to Mrs. Farester, that DiEmidio could be 'talked to' for a price and it may well be that such suggestion arose as the result of an agreement to that end between Yobbagy and DiEmidio. However, the Commonwealth has failed to so prove in the manner and according to the standard of proof required by the law. That which we said in Commonwealth v. Neff, supra (407, p. 15, 179 A.2d p. 636) is apposite in the case at bar: '. . . In short, the Commonwealth has not proven the formation of an agreement--the gist of the crime of conspiracy--between (DiEmidio and Yobaggy) to accomplish either an unlawful purpose or a lawful purpose by unlawful means.' Id. at 179, 188 A.2d at 753.
In short, the proof of the relationship between DiEmidio and Yobbagy created much more suspicion than did the proof here of the relationship between appellant and Cafurello; as the former was insufficient to support an inference of prior agreement, A fortiori so was the latter.
It may also be relevant in establishing conspiracy to prove subsequent acts, depending, again, upon whether those acts were such as to support an inference of prior agreement. Commonwealth v. Kelson, 134 Pa.Super. 132, 3 A.2d 933 (1938). Here it was shown that appellant was in the room when Cafurello offered to make the sale, and that he did not react to the offer. This was not proof of a subsequent act sufficient to show prior agreement. The Commonwealth seeks to infer from the proof of appellant's presence in the front room that appellant overheard the conversation, and then to infer that he realized that marihuana was to be sold in the Perelandra and then to infer that he had made a prior agreement to the sale. The first two inferences are reasonable enough (according to the cadet, appellant was close enough to overhear the conversation between the cadet and Cafurello), but the third inference is not, for it does not follow from the first two. Knowledge that another proposes unlawful action does not alone show conspiracy. Two United States Supreme Court cases are instructive. In United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940), distributors of sugar, yeast, and cans were charged with conspiracy because they sold their wares to persons engaged in the illicit manufacture of liquor. The Court reversed their conviction, holding that one who sells materials knowing that they are to be used for illegal distillation is not, without more, guilty of conspiracy. Not only must there be proof that supports the inference of knowledge, there must also be proof that supports an inference of intent to further and cooperate in the unlawful act. In Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943), a mail-order wholesale drug corporation made sales of morphine sulfate in unusually large quantities and on a frequent and continuous basis to a physician who in turn would illegally sell the morphine. The Court distinguished Falcome and affirmed the corporation's conviction for conspiracy. In Falcone, the suppliers had knowledge of the illegal use, but that was all. In Direct Sales, there was the reasonable inference of knowledge, but in addition there was evidence of the degree of advertising, manner of business, frequency and continuity of sales, indicating prolonged cooperation between the two parties. Only with this additional evidence was the Court ready to take the step from inferring knowledge to inferring intent and agreement. There was then 'more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern.' Direct Sales Co. v. United States, Supra at 713, 63 S.Ct. at 1270. There was also Id. This case is like Falcone and unlike Direct Sales, for here there was not sufficient evidence to allow the step from knowledge to intent and agreement. That is especially true since the only knowledge that appellant...
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