Commonwealth v. Ferguson
516 A.2d 1200
Pa.
1986
Check Treatment

*3 JOHNSON, WIEAND, and JJ. Before BECK WIEAND, Judge: guilty found nonjury tried and was Ferguson

John was the conspiracy2 in connection with robbery1 and criminal Post- in robbery Philadelphia. of a station gasoline armed On imposed. and sentence was trial motions were the was Ferguson contends that direct appeal, con- and robbery insufficient to sustain the convictions We trial counsel was ineffective. spiracy argues and judg- in contentions and affirm the no merit these perceive ment of sentence. evidence,3 the reviewing we sufficiency

In the reasonable inferences presented all view the evidence 1. 18 3701. § Pa.C.S.

2. 18 Pa.C.S. 903. § grant to a Appellant argues court in either that the trial erred recognize to judgment. failed new an arrest of He has trial or weight evidentiary insufficiency. evidentiary between distinction light most favorable therefrom to the Commonwealth The test as verdict winner. whether the evidence thus prove guilt is sufficient beyond viewed reasonable Madison, doubt. 485, 490, 501 Pa. Shaver, A.2d Campbell, 178, 179, Pa.Super. Taylor, Pa.Super. Merrick, also: See

Whiteman, evening appellant

On the December and three persons other drove to 48th and in Phila- Chestnut Streets delphia, they parked where near an Arco service station. remained its motor run- automobile with the others ning approached while the service station. There, the attendant and locked they gunpoint robbed him in thereupon the bathroom. The men returned to the car Ferguson waiting. Appellant where drove to the sister, home of his money where the four men divided the taken from the station. service

This finding evidence was sufficient had agreed promote, encourage facilitate and of the Arco had service station and that he Indeed, participated actively committing the it robbery. had been he initiated the criminal activity by suggest who ing that “he get money.” Ferguson knew where to some car, parked gasoline drove it a short distance from the station, and remained in the the engine automobile with *4 running co-conspirators up while his held the station attend ant. of a ‘get away’ guilty driver car can be found “[T]he if ... it is to infer that he of the reasonable was aware 495, Merrick, (1985); Pa.Super. See: Commonwealth v. 338 488 A.2d 1 120, Whiteman, (1984). Pa.Super. Commonwealth v. 336 verdict, proper Where the evidence is insufficient to sustain the the discharge appellant, grant relief is to the not to a new trial. A new appropriate weight contrary trial is when the verdict to the of the Merrick, supra. appellant evidence. v. While has Commonwealth trial, requested either arrest of or a new the record is clear appellant type. that is not entitled to relief of either 102 agreement intention. His perpetrator’s

actual effectuate planning aids the the and commis- escape perpetrator the Wright, the actual crime.” Commonwealth v. 235 sion of 605-606, 512, (1975). 515 also: 601, 344 A.2d See Pa.Super. v. Perry, Commonwealth 495, 483 561 Pa.Super. 334 A.2d Azim, 310, 459 (1984); Pa.Super. 313 Esposito, 236 (1983); Pa.Su- 1244 A.2d 127, (1975). Here, estab- per. that doubt any lished without reasonable of the Arco station. in the knowing participant “replete the record is with Appellant maintains based on inconsistent and that a conviction inconsistencies” argues He two of the testimony cannot be sustained. each other. How Commonwealth’s witnesses contradicted ever, only the record discloses different recollec a review of robbery. These inconsist preceding tions of the events on minor as to have no effect the fact encies were so appellant’s part robbery. determine in the ability finder’s do not render the evidence insufficient They of guilt. of The mere existence a conflict finding case was not fatal. Com details the Commonwealth’s Smith, monwealth 607, 1120, 1123 v. 600, Pa. A.2d 502 467 Duncan, v. 62, Commonwealth (1983); 68, 473 373 Pa. Maute, v. 1051, (1977); 336 A.2d 1053 1138, 1145 Pa.Super. 485 A.2d argues also that the Commonwealth wit ness, Davis, drugs using Kevin admitted rob that, therefore, should have been bery are credibility solely within found unreliable. Issues Pettus, trier fact. province Common 1332, 558, 561, 424 A.2d Brown, wealth A.2d Pa.Super. Trignani, Pa.Super. Croll, Common- 107, 116-117, Sample, wealth

103 of the produced trial a member The Commonwealth dur- appellant, who testified that Attorney’s staff District crime, another had admitted involving trial ing prior of the Arco service station. participation constitutional- that his trial counsel was contends testimony. to this object ineffective for ly trial counsel allegation an faced with When assistance, first deter a court must rendered ineffective arguable is of the claim underlying the issue mine whether had a so, by course chosen counsel and, if merit whether his client. the interest of designed serve reasonable basis 1167, Buehl, 510 Pa. 363, 378, 508 A.2d v. Commonwealth 455, 504 Pa. Stoyko, See: Commonwealth v. (1986). 1174 Wade, 331, (1984); 501 Pa. 475 A.2d 714 Anderson, (1983); 501 Pa. 275, (1983). merit

Here, arguable appellant’s there is no admission, extra judicial or contention. His whether hearsay an rule. judicial, exception was admissible as 486, 499, 250, v. 447 A.2d Boyle, Commonwealth 498 Pa. Glass, 334, 347, v. Pa. 405 Commonwealth (plurality opinion); Commonwealth 1236, (1979) Cristina, (1978) 481 Pa. 391 A.2d (plurality opinion), cert. 99 S.Ct. U.S. Tervalon, 463 Pa. 59 L.Ed.2d 479 Darden, against of the Fifth Amendment self-incrimi protection appellant voluntarily gave

nation was testimo waived when inny prior proceedings. [appellant] “The fact that ... trial did not right during exercised his silence second consequences testimony. insulate him from the of his earlier from an earlier long recognized It has been prosecution’s against trial introduced in the case may be takes the regardless defendant of whether that defendant proceeding.” stand or not the second 447 A.2d at 256. See: Com Boyle, supra, 498 Pa. at 383, 21 A. 288 Doughty, monwealth v. House, When *6 in the prior proceedings took the stand without self-incrimination, thereby he asserting privilege against his that given, and testimony as to the privilege waived the trial. against subsequent in a could be used him (7th Cir.), States, F.2d cert. Heller v. United Counsel 286 U.S. 52 S.Ct. 76 L.Ed. objection not to make a meritless was ineffective as receipt appellant’s prior guilt admission in the case judice. sub of sentence is affirmed. judgment JOHNSON, J., concurring opinion. files a JOHNSON, concurring: Judge, agree I that the of sentence should affirmed be issue. analysis sufficiency on the majority’s however, argua I I find no separately, write because would Appellant’s claim on the ble merit ineffectiveness in another case grounds Appellant’s prior testimony penal as a interest. against was admissible declaration Colon, A.2d 1187 Ayala, 804(b)(1). F.R.Evid. Cf., penal interest are se against per Not all declarations made circum- declarations must under admissible. Such be reliability considerable assurance of provide stances that of a confession excul- unreliability the inherent recognizing declarant. possible accomplices at no cost pating Pa.Superior 419 A.2d at 1189. Ayala, 277 Ct. questioned district who attorney, In this case an assistant reference separate proceeding, in a criminal made Appellant Appellant charged for which was gas to the station case admitted in the in the instant he getaway was the driver. proceeding statement, view, by Appellant This was made under my provided circumstances which considerable assurance com- directly implicated Appellant since it reliability therefore, claim, a crime. The ineffectiveness mission of statement merit since the contested arguable has no interest ex- against penal under the declaration admissible rule. hearsay ception Appellant, Pennsylvania,

COMMONWEALTH PURNELL, Appellee. Isabel *7 Pennsylvania, Appellee, COMMONWEALTH of PURNELL, Appellant. Isabel Superior Pennsylvania. Court of

Argued May 1986.

Filed Oct.