Commonwealth v. Toritto

• Decision Date: 16 May 2013
• Citation: 67 A.3d 29,2013 PA Super 118
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph TORITTO Jr., Appellant.
• Court: Pennsylvania Superior Court

67 A.3d 29

2013 PA Super 118

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph TORITTO Jr., Appellant.

Superior Court of Pennsylvania.

Argued March 21, 2012.

Filed May 16, 2013.

Jerome M. Brown, Philadelphia, for appellant.

William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., BOWES, GANTMAN, PANELLA, SHOGAN, ALLEN, LAZARUS, MUNDY, AND WECHT, JJ.

OPINION BY PANELLA, J.:

We granted en banc review in this case to principally address the issue of the sufficiency of the evidence to sustain a conviction of accomplice liability for a narcotics transaction. In an interesting development following trial, the jury convicted the Appellant, Joseph Toritto, Jr., under an accomplice theory, but acquitted him of the conspiracy charge. Toritto argues that his mere presence at the time of a drug sale from his cousin to an undercover agent cannot sustain a conviction for accomplice liability. We recognize that a defendant's association with a perpetrator of a crime, his presence at the scene of the crime, or his knowledge that a crime is being committed are not sufficient to establish his complicity in that crime. However, these cases are fact intensive, which necessitates our close review of the record.

As a consequence of his conviction, which resulted in a substantial sentence of incarceration of seven to fourteen years in light of his prior record and mandatory sentencing requirements, Toritto appealed from the judgment of sentence entered on June 11, 2009, by the Honorable Gregory M. Mallon, Court of Common Pleas of Delaware County. After careful review, we affirm.

The facts of this case are largely undisputed. Toritto drove Charles Tursi to a bar, wherein Tursi consummated a sale of narcotics to Michael McIlmail, an undercover agent for the Attorney General's Office. During the transaction, Toritto gave the keys of his car to Tursi, allowing Tursi to retrieve the narcotics from Toritto's car. Furthermore, Toritto was intermittently present while Tursi discussed the transaction with the undercover agent, but did not participate directly in the transaction. After Tursi sold the drugs to McIlmail, agents from the Attorney General's Office arrested both Tursi and Toritto as they left the bar.

Toritto was subsequently charged with being an accomplice to the delivery of a controlled substance and with criminal conspiracy. A jury convicted Toritto as an accomplice, but, as stated above, acquitted him on the charge of conspiracy. After the denial of Toritto's post-sentence motions, he filed this timely appeal.

Toritto raises the following issues for our review:

1. Where the evidence presented demonstrated only mere presence, was the evidence insufficient as a matter of law?

2. Where the evidence only demonstrated mere presence, was the verdict against the weight of the evidence and did it shock the conscience?

3. Did the lower [c]ourt err in permitting a case agent to also render an opinion that Appellant was a driver/ associate of the principal, especially where the case agent was such a biased source and based his opinion on a dearth of evidence?

4. Did the continuous, biased and gratuitous answers by the case agent, which prejudiced appellant, deny a fair trial?

5. Did the lower [c]ourt err in admitting gossip about a third party, not involved in this case whom the defendant stated was “no good,” and then in permitting the case agent to speculate that this comment demonstrated appellant's guilty knowledge?

6. Did the Commonwealth engage in sentencing entrapment when co-defendant Tursi, who was the target of the Commonwealth, was engaged in multiple drug sales, when the Commonwealth already had sufficient sales to sentence Tursi to a minimum 7–14 year sentence, and was Petitioner also entrapped by the actions of the Commonwealth?

7. Is the mandatory sentencing statute pursuant to 18 Pa.C.S. § 7508 unconstitutional as it denies due process and/or equal protection to minor participants in a crime, and/or was it unconstitutional as applied to this case?

Appellant's Brief, at 3–4.

Toritto first argues that the evidence at trial was insufficient to establish that he was an accomplice to Tursi's sale of narcotics. Because a successful sufficiency of the evidence claim warrants discharge on the pertinent crime, we must address this issue first. See Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super.2011). Our standard of review is well-settled:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa.Super.2011) (citation omitted). We must defer to the finder of fact at the time of trial:

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super.2011) (quoting Commonwealth v. Mobley, 14 A.3d 887, 889–890 (Pa.Super.2011)). Furthermore, “in applying the above test, the entire record must be evaluated and all evidence actually received must be considered.” Stokes, 38 A.3d at 854 (quoting Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa.Super.2011)).

An accomplice is equally criminally liable for the acts of another “if he acts with the intent of promoting or facilitating the commission of an offense and agrees, aids, or attempts to aid such other person in either planning or committing that offense.” Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580, 585 (1998), cert. denied,526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999). See also18 PA. CONS. STAT.ANN. § 306. Therefore, the Commonwealth must present evidence capable of establishing not only that the defendant actively participated in the crime, but also that he intended to aid or promote the underlying offense. See Commonwealth v. Rega, 593 Pa. 659, 689, 933 A.2d 997, 1015 (2007).

Toritto argues that the evidence at trial was insufficient to establish anything more than mere presence or knowledge of the narcotics transaction. The uncontradicted testimony at trial established that Toritto was at a table with McIlmail and Tursi while aspects of the narcotics transaction were discussed. Although it is equally undisputed that Toritto left the table for stretches of time during the conversation, McIlmail testified that when Toritto left the table, he was usually no more than three feet away, and still capable of overhearing the conversation. See N.T., Trial, 4/7/2009, at 189.

While it was Toritto's hope that the jury would infer that Toritto merely learned of the narcotics transaction after he had already driven Tursi to the bar to meet Agent McIlmail, this was not the inference drawn by the jury, who had the benefit of observing the witnesses and hearing the testimony first-hand. There are sufficient facts to support the jury's conclusion that Toritto had knowledge of and participated in the illegal drug sale.

Pertinently, the jury had the following undisputed evidence before it:

• Toritto drove Tursi to the agreed upon meeting place in Toritto's car where the drugs were hidden;

• Toritto sat with Tursi and McIlmail while they discussed the sale of illegal drugs, and although he got up now and then, he usually remained within listening distance; ¹

• When McIlmail cautioned Tursi about Toritto's presence at the drug sale, Tursi told McIlmail that Toritto was his cousin and “was good”; ² • When McIlmail asked Tursi about another individual named “Vincent Valone,” Toritto interjected and spoke directly to McIlmail that Valone was “no good”; ³

• The discussion between McIlmail and Tursi about the current drug transaction took place at the table while Toritto was sitting with them;

• After Tursi and McIlmail concluded their conversation about the immediate drug sale, Toritto handed his car keys to Tursi who then retrieved the drugs from Toritto's car;

• After McIlmail handed over $3,200 in cash to Tursi in exchange for the drugs, Toritto suggested to Tursi that he go into the bathroom to count the money.

Contrary to the argument raised by Toritto, this evidence is not so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Rather, the evidence of record was capable of allowing a reasonable person to draw the inference that Toritto intentionally aided Tursi in the sale of narcotics, first by driving Tursi to the bar, then by remaining with him during the conversations, and finally by giving him the keys to his car to retrieve the drugs. A defendant cannot be an accomplice simply based on evidence that he knew about the crime or was present at the scene. However, the circumstances change if there is additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did or attempted to do so. The amount of aid “need not be substantial so long as it was offered to the principal...