Commonwealth v. Calderini

611 A.2d 206, 416 Pa. Super. 258, 1992 Pa. Super. LEXIS 1468

• Court: Superior Court of Pennsylvania
• Decided: June 3, 1992
• Docket: 157
• Status: Published

Opinions

WIEAND, Judge.

James Calderini was tried by jury and was found guilty of robbery.¹ Following the denial of post-trial motions, he was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. On direct appeal from the judgment of sentence, Calderini contends that there was insufficient evidence to support his conviction and that the trial court committed reversible error during its instructions to the jury. Finding no merit in these contentions, we affirm the judgment of sentence.

In reviewing a challenge to the sufficiency of the evidence, we must determine, “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). In addition, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with defendant’s innocence, but the question of any doubt is for the jury 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. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

So viewed, the evidence at appellant's trial established that, on March 24, 1990, at or about 7:30 p.m., John Chilton entered the Springdale Pharmacy and asked an employee if the store’s owner-pharmacist was present. Chilton was told that the owner was not there, but that another pharmacist was on duty. He then asked the pharmacist on duty if she would show him literature about a certain drug. When the pharmacist retrieved the requested information, Chilton grabbed her by the wrist and pushed her to the floor. Subsequently, Chilton began kicking the cabinet in which narcotic drugs were stored, and he removed therefrom a bottle containing Tylenol with codeine pills before fleeing the store. During the robbery, Joseph Rometo was observed standing outside the pharmacy, and, after Chilton had fled the store, Rometo was seen walking away from the pharmacy in the same direction as Chilton.

Springdale Police Officer Gene Polsinelli, immediately prior to receiving a radio report of the robbery, had observed a large brown sedan pull away from the curb about one block from the pharmacy. The occupants of the vehicle appeared suspicious. Twenty minutes after the robbery, Officer Joseph Naviglia of the Tarentum Borough Police Department observed a brown Lincoln Continental being driven out of Springdale. The vehicle was driven by the appellant, James Calderini, and its passengers were Joseph Rometo and John Chilton. Prior to this observation, Naviglia had been informed of the robbery via police radio and had been told that Rometo had been seen outside the pharmacy during the robbery by Chilton. Naviglia called for backup and followed the vehicle to the home of Rometo. When the vehicle left Rometo’s home, Naviglia continued to follow it until it broke down on Route 28. Upon the arrival of other officers, Naviglia approached the vehicle and asked appellant for identification. Appellant told the officer his name was Spencer and gave the officer identification reciting that his name was Spencer. When appellant was subsequently searched, police found on his person four Tylenol with codeine pills of the same kind which had been taken by Chilton from the pharmacy.

Based upon these facts, appellant, Rometo and Chilton were charged with robbery and criminal conspiracy. Chilton entered a plea of guilty to robbery, and appellant and Rometo were subsequently tried jointly upon the theory that they had been accomplices of Chilton. Both were convicted of robbery, but acquitted on the charge of conspiracy. In this appeal, Calderini argues that the Commonwealth failed to prove that he was an accomplice because there was no evidence that he had been present at the scene of the crime or that he actively participated therein.

“A person is legally accountable for the conduct of another person when he is an accomplice of that person in the commission of [an] offense.” Commonwealth v. Orlowski, 332 Pa.Super. 600, 616, 481 A.2d 952, 960 (1984). See: 18 Pa.C.S. § 306.

An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of a crime.” Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra 460 Pa. [316] at 319-320, 333 A.2d [745] at 747 [1975]; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978).

Commonwealth v. Brady, 385 Pa.Super. 279, 284-285, 560 A.2d 802, 805 (1989). However, “[t]he least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice.” Commonwealth v. Graves, 316 Pa.Super. 484, 489-490, 463 A.2d 467, 470 (1983). See: Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981).

Although appellant is correct in his assertion that there was no direct evidence placing him at or near the pharmacy at the time of the robbery, the evidence did show that only twenty minutes later he was driving a vehicle which a jury could find, by inference, was the getaway car. At that time, moreover, appellant had in his possession four Tylenol pills of the same type which had been taken during the robbery. His possession of these pills was alone circumstantial evidence of guilt, for our Supreme Court has observed that a person’s possession of property shown to have been possessed recently by “the victim of a robbery is evidence that such person was a party to the robbery.” Commonwealth v. Wilson, 394 Pa. 588, 606, 148 A.2d 234, 244 (1959), cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). See: Commonwealth v. Kaufman, 179 Pa.Super. 247, 251,116 A.2d 316, 319 (1955) (“possession of goods recently stolen in the perpetration of a robbery or burglary is evidence of guilt on charges of not only larceny but of both robbery and burglary as well.”); Commonwealth v. Lehman, 166 Pa.Super. 181, 185, 70 A.2d 404, 406 (1950) (same). See also: Commonwealth v. Lawson, 204 Pa.Super. 239, 242, 203 A.2d 406, 407 (1964) (defendant’s possession of recently stolen goods warranted jury in finding that he was the robber); Commonwealth v. Fusci, 153 Pa.Super. 617, 621, 35 A.2d 93, 95 (1943) (“[Possession of recently stolen property is evidence that the possessor is the thief.”). “‘However, such evidence is not conclusive and may be rebutted. It is for the trier of fact alone to say whether the guilt of the defendant is a reasonable inference, fairly deducible from his possession of recently stolen property, in light of all the circumstances, including the reasonableness of his explanation, if any, as to how he came into possession.’ ” Commonwealth v. Thomas, 305 Pa.Super. 158, 165, 451 A.2d 470, 473 (1982), quoting Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965).

When appellant’s possession of the pills is considered along with his driving of the getaway car only twenty minutes after the robbery, it seems clear that a jury could infer that appellant was a participant in the robbery as Chilton’s accomplice. See: Commonwealth v. Perry, 334 Pa.Super. 495, 503, 483 A.2d 561, 565 (1984) (defendant’s driving of getaway car minutes after her husband had robbed gas station and her possession of money taken in the robbery constituted sufficient evidence to establish her guilt as an accomplice to the robbery). Here, appellant also gave a false name and identification when stopped by the police. This was an additional circumstance tending to show consciousness of guilt. See: Commonwealth v. Boyle, 498 Pa. 486, 497, 447 A.2d 250, 255-256 (1982); Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955); Commonwealth v. Meadows, 381 Pa.Super. 354, 362, 553 A.2d 1006,1010 (1989). Therefore, despite the fact that there was no direct evidence placing appellant at the scene of the robbery, we hold that the evidence that he was driving the getaway car a short time after the robbery, that he falsely identified himself to police and that he had in his possession fruits of the robbery was sufficient to establish circumstantially that appellant was an accomplice in the commission of the robbery.²

Appellant also contends that the trial court committed reversible error when, in response to an inquiry from the jury, the court gave the following additional instruction:

Now, ladies and gentlemen, you also asked about an accessory after the fact, and that’s different from being an accomplice. An accessory after the fact is somebody who does something in connection with the crime that did not — that did not do anything to promote or facilitate the commission of the crime, did not solicit, command, encourage the other person who committed crime to do so or did not aid or agree to aid or attempt to aid the other person in planning it or committing it. He may have some connection with it, as one of [the] attorneys gave you an example after the crime is all over, somebody hands a person a gun or something, had nothing to do with the crime at all. He may have known it was committed, however, if he tried to help the person to do it.

In other words say if you committed a homicide, a shooting, and after the whole thing is over, you hand some guy a gun, say keep it for me, didn’t do anything about it, said sure, I will keep it for you, can be an accessory after the fact. He has the murder weapon. But if he knows a murder was committed and is hiding the weapon to help the defendant, then he is an accomplice, very fine line.

In other words, the accomplice is somebody that is helping the person do the crime or telling him to do it or encouraging him to do it. The accessory is sort of an accessory, not necessary, but he is around.

N.T. 11/5/91 at pp. 174-176. Appellant argues, specifically, that the court’s example distinguishing an accomplice from an accessory after the fact was incorrect.

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). “Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant.” Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987). A jury instruction given by the trial court will be upheld so long as it “sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.” Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990).

We agree with appellant that the trial court’s example distinguishing the concepts of accomplice liability and accessory after the fact was erroneous. However, we also agree with the Commonwealth that this part of the charge was wholly superfluous and does not require the award of a new trial. In this case, appellant had not been charged as an accessory after the fact³ but with being an accomplice to a robbery. It was the defense that requested that the jury be charged that an accessory after the fact is not an accomplice. Although such an instruction was given by the court, it was not necessary under the facts of this case, and, indeed, probably should not have been given. What was necessary was that the jury be fully and correctly instructed upon the law pertaining to accomplice liability. Our review of the jury charge and the additional instructions given in response to the jury’s inquiry convinces us that the trial court fully and accurately instructed the jury regarding accomplice liability. Any error in the court’s discussion regarding the circumstances necessary to prove one an accessory after the fact was unnecessary to the issues before the jury. As such, the trial court’s erroneous instruction was harmless. We hold, therefore, that appellant is not entitled to a new trial because of the trial court’s unnecessary attempt to define the crime of accessory.

Having found sufficient evidence to sustain appellant’s conviction for robbery, and finding no other error which would entitle appellant to a new trial, the judgment of sentence will be affirmed.

Affirmed.

HESTER, J., files a Dissenting Opinion.

1 . Calderini was found not guilty of criminal conspiracy.

2 . Our holding is unaffected by the testimony of Rometo and Chilton that appellant was not involved in the robbery, for the credibility of such testimony was for the jury to evaluate. " ‘[Ijt is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.’” Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). Therefore, the jury was free to reject the exculpatory testimony given by Chilton and Rometo.

3 . Criminal liability for being an accessory after the fact is imposed by 18 Pa.C.S. § 5105, which provides as follows:

§ 5105. Hindering apprehension or prosecution

(a) Offense defined. — A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:

(1) harbors or conceals the other;

(2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or

(5) volunteers false information to a law enforcement officer.

(b) Grading. — The offense is a felony of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a felony of the first or second degree. Otherwise it is a misdemeanor of the second degree.