Commonwealth v. Smith

¶1dissenting.

¶2Although I agree with the majority’s resolution of appellant’s first five claims of error, I conclude that appellant should prevail on his final claim that the evidence of conspiracy was insufficient to convict. I limit my discussion to the sufficiency of the evidence.

¶3Appellant Sean Smith was charged with possession of a controlled substance with intent to deliver, delivery of controlled substances, and conspiracy to commit possession with intent to deliver controlled substances. Following a jury trial, Smith was acquitted of the first two charges but found guilty of criminal conspiracy.1

¶4“The test to be utilized in determining if a directed verdict should be granted is ‘if the prosecution’s evidence, and all inferences arising therefrom, considered in the light most favorable to the prosecution are insufficient to prove beyond a reasonable doubt that the accused is guilty of the [crime] charged.’ ” Commonwealth v. Potts, 314 Pa.Super. 256, 278, 460 A.2d 1127, 1138 (1983) (citations omitted).

¶5Viewing the evidence in accordance with the above standard, the following evidence was adduced at trial. On June 20, 1988, confidential informant Richard Siegel agreed to participate in a “sting” operation wherein he would purchase a quantity of cocaine with $4,100.00 in “marked” money. That same day, Russell Wilson was asked and agreed to secure cocaine for Siegel. Wilson then approached Michael March, who communicated with appellant Smith, his “supplier.” 2 After March had confirmed that appellant Smith could supply the cocaine, Siegel, Wilson and March drove to a street near an art school. During the ride, Siegel handed $4,100.00 to March.

¶6At the art school, the vehicle stopped and March alone exited the vehicle. Forty-five minutes later, he returned with two and one-half ounces of cocaine. Thereafter, the *218vehicle was stopped and the occupants arrested. After his arrest, March told the police that he left the vehicle to go to Smith’s apartment and therein gave Smith $4,100.00 in exchange for two and one-half ounces of cocaine. March also told the police where Smith lived. Pursuant to this information, the police proceeded to Smith’s apartment. Because the apartment door was open, the police officers were able to observe drug paraphernalia on the kitchen table. When the officers entered the apartment, they located Smith and arrested him. Later, another officer arrived with a search warrant, and a search pursuant thereto revealed packages of cocaine, various empty “baggies”, records of drug transactions, and a large amount of cash. Among the evidence seized was marked bills totaling $4,100.00

¶7In addressing Smith’s claim, we initially refer to the definition of criminal conspiracy, as set forth in the Crimes Code:

(a) Definition of conspiracy, — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime;

¶818 Pa.C.S.A. § 903(a)(1). See also Commonwealth v. Mills, 329 Pa.Super. 196, 478 A.2d 30 (1984); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983). In Lamb, this court said:

The essence of the offense of conspiracy is an agreement between two or more persons to commit an unlawful act. The agreement required for conspiracy can seldom be directly proved, nor need it be. However, a mere association between several alleged co-conspirators or their mere presence at the scene of the crime is not enough to establish that there has been a criminal conspiracy. Among the circumstances which are relevant, but not *219sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.

¶9Commonwealth v. Lamb, supra,309 Pa.Superior Ct. at 429, 455 A.2d at 685-86 (citations omitted).

¶10Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983) is similar to the instant case. In Derr, an undercover agent gave $1,100.00 to appellant to purchase contraband. The undercover agent remained in the car while appellant entered the premises to purchase the hashish. Shortly after entering the house, appellant returned with the hashish and delivered it to the undercover agent. Thereafter, the appellant and the undercover agent parted.

¶11The Derrcourt found the Commonwealth failed to prove “an agreement between two or more persons to engage in some unlawful activity.” In Derrthe Pennsylvania Supreme Court found that the Commonwealth did not show that the “defendant had any knowledge of the existence or terms of the alleged agreement and participated in no action toward the furtherance of the alleged agreement.” In essence all the Commonwealth showed was a buyer-seller relationship between appellant and his supplier.

¶12In the instant case as in Derrthe Commonwealth failed to prove a conspiracy beyond a reasonable doubt. Neither direct nor circumstantial evidence proved that appellant Smith had any knowledge of the existence or terms of an agreement among Wilson, March, and himself as supplier. The conspiracy must be premised upon an agreement between the conspirators to deliver a controlled substance to the customer, in this case informant Siegel. The Commonwealth’s evidence therefore is insufficient.

¶13*220The Commonwealth’s evidence indicates the following: that March as the direct purchaser accompanied Siegel and Wilson to an art school, that March alone went to Smith’s apartment to purchase cocaine for Siegel, and that March and Wilson knew that Siegel sought to obtain cocaine. However, the evidence does not support the conclusion that Smith, the supplier, made an agreement with March and Wilson to sell cocaine to Siegel. There is no evidence that would indicate that Smith had harbored joint criminal intent to sell cocaine to Siegel. Furthermore, there is no evidence that Smith knew Siegel or had any prior dealings with him. The evidence merely proves a buyer-seller relationship between March and Smith.

¶14The majority attempts to impute knowledge of an agreement by relying on evidence that appellant had a large amount of cash, drug records, and packaging material in his apartment. To conclude from that the appellant conspired with March and Wilson is speculative and does not constitute evidence of a conspiracy beyond a reasonable doubt. The Derrcourt under similar circumstances instructs that we may not impute an agreement where the evidence only supports the fact that the supplier sold drugs to the customer. The Commonwealth’s evidence falls far short of the reasonable doubt standard necessary to convict.