Commonwealth v. DolfiCommonwealth v. Dolfi
- Reporters:
- , ,
- Before:
- Eagen
OPINION OF THE COURT
EAGEN, Chief Justice.
Appellant Emil Dolfi and co-defendants, Gaylord Rumble and Edith Marie Blewitt, were convicted in a nonjury trial of violating
Appellant attacks the sufficiency of the evidence to convict him of conspiracy and, thus, of a violation of
The evidence in the record may be summarized as follows:
During April, 1975, Sergeant Herbert Stouffer, an officer of the Pennsylvania State Police, assigned an officer to investigate an allegation from an unidentified source that appellant was involved in a numbers operation in Clairton, Pennsylvania. When the officer conducting the surveillance was transferred, Sergeant Stouffer requested Chief of Police Kenneth Ujevieh of Clairton to assume supervision of the investigation.
On April 15, 1975, Chief Ujevieh and Clairton Police Lieutenant Milas conducted a surveillance of the parking lot adjacent to Maracini’s Supermarket from a distance of about fifty yards. At about 2:20 p. m., the officers observed a brown Oldsmobile, driven by an unidentified woman, pull into the parking lot. 2 Gaylord Rumble, who had been standing near the front door of the market, took something that looked like white papers from his pocket and handed them to the driver of the Oldsmobile. Both then departed separately-
On April 16, 1975, Chief Ujevieh and Clairton Police Detective Scully watched the same parking area from ap
On April 17, 1975, Chief Ujevich and Detective Scully conducted surveillance of the same parking lot at the same time of day. The Chief testified the brown Oldsmobile driven by the unidentified woman arrived about 2:10 p. m. and was followed five minutes later by Rumble. Shortly thereafter, appellant arrived and conversed with Rumble; then, both he and appellant conversed with the driver of the Oldsmobile. 3 The three, left the parking lot separately. Nothing was observed being passed. However, Chief Ujevich contacted Sergeant Stouffer to inform him enough information had been gathered to provide the probable cause necessary to obtain search warrants for the three autos involved.
On April 18, 1975, Sergeant Stouffer and Chief Ujevich stationed themselves near the same parking lot around 2:20 p. m. Appellant drove into the lot accompanied by a small child. The brown Oldsmobile, driven by an unidentified woman and carrying a female passenger, then entered the lot, and appellant got out of his vehicle, handed the child to one of the women in the Oldsmobile, and left the lot. The child was later identified as a grandchild of the driver of the Oldsmobile, Edith Marie Blewitt. After appellant left, Rumble arrived and was observed handing what looked like a white envelope to one of the female occupants of the Oldsmobile.
A short time after all three vehicles left, police stopped appellant’s auto and the Oldsmobile driven by Blewitt and directed that the vehicles and occupants proceed to a magistrate’s office so that the search warrants could be executed.
According to Sergeant Stouffer, during questioning of appellant, Blewitt, and Blewitt’s passenger, Blewitt said her passenger was a friend and “had nothing to do with it.” Sergeant Stouffer further testified that, during his interrogation of the two women, appellant stated “the other lady is not involved in it.”
Rumble was arrested a short time later. Items identified as numbers slips were seized from his person and automobile.
An unlawful agreement or an agreement to do a lawful act in an unlawful, manner is an essential element of a conspiracy, and the agreement among co-conspirators is the nexus which makes each member criminally responsible for acts of the others in furtherance of the conspiracy.
Although a common understanding is at the heart of every conspiracy, it is generally difficult to prove an explicit or formal agreement. Therefore, a conspiracy may be established by circumstantial evidence, i. e., the relations, conduct, or circumstances of the parties or overt acts on the part of co-conspirators. See
Commonwealth v. Roux,
supra;
Commonwealth v. Eiland,
450 Pa. 566, 301 A.2d 651 (1973);
Commonwealth v. Yobaggy,
410 Pa. 172, 188 A.2d 750 (1963);
While proof of the agreement which is an essential element of a conspiracy may be accomplished by circumstantial evidence, if “a conviction is based entirely on circumstantial evidence, ‘the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all.’ If the conviction is based wholly on inferences, suspicion and conjecture, it cannot stand.” Commonwealth v. Simpson, 436 Pa. 459, 464, 260 A.2d 751, 754 (1970). [Citation omitted.]
The Commonwealth has attempted to prove appellant’s involvement in a conspiratorial agreement in part by showing he met three times in a parking lot with other suspects. On one occasion, appellant was handed what appeared from at least fifty yards away to be a white piece of paper. The next day he conversed with two persons, and on the third day he was observed handing a small child to the female occupants of an automobile. The child proved to be the grandchild of one of the women. While these events may arouse some suspicion, they surely do not rise to proof beyond a reasonable doubt of a conspiratorial agreement.
Additionally, the Commonwealth offers appellant’s statement that Blewitt’s passenger was “not involved in it.” Appellant made this comment while Sergeant Stouffer was questioning the two women who had occupied the Oldsmobile. Again, the statement may raise some suspicion, but it is just as possible it was a chivalrous remark, rather than an implied admission of guilt.
Finally, the Commonwealth offered the numbers slips seized from the child’s overalls as circumstantial evidence of a conspiratorial agreement.
4
This evidence does little to
There being no direct link between appellant and the seized numbers slips, their possession by Blewitt was merely another suspicious circumstance regarding appellant. Although several suspicious circumstances were proven from which appellant’s involvement in a conspiratorial agreement could be conjectured, such proof does not rise to proof beyond a reasonable doubt required for a criminal conviction.
Because the evidence is insufficient to support a conviction for conspiracy, the conviction for violation of
Notes
. A prison sentence of not less than one year nor more than two years was imposed, but was to take effect only if the conditions of probation were violated.
. The vehicle was registered to a Joyce Gracon, who was later determined to be the daughter of appellant.
. There is a slight internal inconsistency in Chief Ujevich’s testimony in that he initially reported the Oldsmobile arrived first at about 2:10 p. m., and then testified it arrived while Rumble and appellant were conversing.
. Appellant argues that the evidence was inadmissible against him unless the Commonwealth first established a prima facie case of conspiracy. Because of the disposition regarding sufficiency of the evidence, this issue need not be resolved.
. Cf. Commonwealth v. Roux, supra; Commonwealth v. Eiland, supra; Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255, cert. denied 375 U.S. 856, 84 S.Ct. 118, 11 L.Ed.2d 83 (1963).