*4 HESTER, Before POPOVICH, JOHNSON and JJ. POPOVICH, Judge:
After a bench trial Judge before Goldman of the Court of Common Pleas of Philadelphia County, appellant, Thad Ford, deus was adjudged guilty Aggravated Assault,1 Attempted Murder,2 Criminal Conspiracy,3 En Recklessly dangering Person,4 Another Carrying a Firearm on a Public Street or Public Property Philadelphia,5 Carrying Fire arm Without a License6 and Possession of an Instrument of 1. 18 Pa.C.S.A. 2702. §
2. 18 Pa.C.S.A. 901 & 2502. §§
3. 18 Pa.C.S.A. 903. §
4. 18 Pa.C.S.A. 2705. §
5. 18 Pa.C.S.A. § 6108.
6. 18 Pa.C.S.A. *5 motions, Following post-trial the denial of appel
Crime.7 1) lant was sentenced: five to ten for years Criminal Con 2) spiracy; years two and one-half to five for Possession of Crime, an Instrument of which was to run concurrently term; 3) Conspiracy with the two and one-half to five years Carrying License, a Firearm Without a which was to run to the consecutively Possession of an Instrument of concurrently Crime sentence but with the sen Conspiracy tence; 4) Murder, years and five to ten for Attempted which to consecutively Conspiracy was also ordered run to the imposed sentence. No sentence was for the convictions of Aggravated Recklessly Endangering Assault and Another appeal Person. This followed. We vacate and remand for proceedings Opinion. consistent facts,
The in light viewed a most to the verdict favorable winner, here, the Commonwealth consist of the Young, following: p.m. At 8:00 on the 27th of approximately Sep- tember, 1980, Kevin Mason summoned Lawrence Brown to the home of Leon in the Jones Point Breeze section of South Mr. made his Philadelphia. way Brown to the Jones’ resi- route, ten-speed dence on his En Brown met the bicycle. who was Mason’s and the trio en- appellant, company, there, together. tered the house Once Mason borrowed and returned fifteen bicycle Brown’s minutes later with Alphonso Beecher. arrived, caliber, Beecher a .32 appellant
When removed pants. steel revolver from the back of his He then blue remarked, handed it to Beecher and “I can’t take this bust.” could not appellant get up” The afford “to locked because of a firearm would constitute a possession violation of his result, existing probation. weapon, As a Beecher took the recognized Mason, as belonging placed which Brown (N.T. 11-15, 23, 25-27, pants. 29-30). it in his own Mason, Beecher, Brown, Jones and left group park house as a walked about three blocks to a Street, located on 23rd between Reed and Dickinson Streets. 7. 18 Pa.C.S.A. the group park,
When reached the appellant, Mason and separated Jones from Beecher, Brown and both whom continued to slightly walk for than less half block. At *6 point, Brown, according screamed, to appellant “Go ahead. span minute, Now.” Within the of Beecher a fired six point-blank shots at Brown at range, hitting him four in scene, times the back. Beecher ran from the while and appellant, away. Mason Jones walked shooting The that left of both Brown’s legs totally para- about lyzed twenty occurred minutes after the appellant Beecher; had handed the .32 weapon caliber to the gun Beecher used was the same one changed that possession (N.T. 17-19, 21, 28, Jones’ house. 31-35, 44) 39-41 & To rebut the case-in-chief, Commonwealth’s appellant the (Patricia produced two witnesses Johnson and Sharon Washington) to who admitted conversing appellant with the scene, at the denied hearing any but him make statement resembling phrase, even the “Go immediately ahead. Now” preceding question. (N.T. 49-50, 59) the shooting 53 & fact,
The trier of after hearing weighing and all of the evidence, the appellant found as guilty charged and sen- him tenced to the terms imprisonment of recounted supra. appeal, On appellant challenges of sufficiency evidence to sustain the verdict the propriety of “the (3) sentence ... for three different inchoate crimes ... pursuant to 18 906.” (Appellant’s 3) Pa.C.S. Brief at we Since find that the presented evidence was sufficient some, to establish appellant’s guilt all, as to but not charged, offenses we deal will with each separately offense for ease of discussion. with, start
To asserts that the produc- evidence ed at trial prove was insufficient to beyond a reasonable Thus, doubt a existed. conspiracy he contends that he Murder, was of improperly Aggrava- convicted ted Assault Recklessly Endangering Another Person of under rubric a conspirator Alphonso Beecher and victim, the others to cause injury Mr. Brown. proof neces- quantum regarding question theOn agree- conspiratorial of a the existence to establish sary ment, has stated: this Court understanding is common conspiracy
The essence Fontana, agreement. However, the Commonwealth conspiracy of a the existence required to establish
is not
Id.
agreement.
or formal
explicit
or an
proof
direct
by
agreement
or formal
“Indeed,
explicit
of an
proof
direct
seldom,
ever,
and it
supplied
if
be
a crime can
to commit
in this Common
law
for ‘it is established
need not be
by circumstantial
may
proved
be
conspiracy
that a
wealth
”
Common
direct evidence.’
as
as
evidence
well
Roux, 482, 488,
wealth
suscep
makes it
usually
crime
The nature of the
*7
evidence.
circumstantial
by
other
than
proof
of no
tible
Evans,
179,
289 Court, Supreme discussing conspiratorial accountability, has held: one, is that
When there evidence has not who struck blow, has, nonetheless, fatal in the shared criminal intent activity, person and the criminal has aided abet- and, thus, ted in the commission of the crime held may be accomplice as an responsible to another’s acts and the of consequences those acts. 454 Commonwealth v. Rife, 506, 312 (1973); Wilson, Pa. Commonwealth v. 449 Pa. Commonwealth 98 374 Pa. A.2d Lowry, 733 “The least degree concert or collusion parties between to an illegal transaction makes the act one the act all." Strantz, 33, 40, 328 Pa. 195 A. added) (1937). (Emphasis 35, 39-40, A.2d Vaughn,
Moreover, Cox, as noted in Pa. 582, 586, (1976):
... the Commonwealth was not required establish that part was appellant joint effort to cause the death of ... the victim direct by evidence. This burden bemay sustained means of wholly circumstantial evidence. Thus, cited, on based the cases need just to decide if the we evidence presented was sufficient to prove, beyond a rea- doubt, the sonable existence of a conspiratorial agreement so as to hold guilty for the acts of his confeder- ates. In particular, supports whether the evidence a find- *8 ing appellant shared, cohorts, that the with his the intent specifically deliberate, to necessary establish the willful and premeditated (attempted) victim, killing of the see Com- Bachert, v. supra, monwealth “partici- and whether he pated encouraged (Citations in or omitted) the offense.” supra, Pa. at Young, 285 A.2d issue, at 500. this On we find the case Commonwealth Smith, 490 Pa. (1980) instructive. Smith, In the appellant in a engaged fistfight awith terminated, Leon After Mayo. dispute appellant en- fistfight neighborhood in in the same with a gaged a second day. later on that same Smith left the scene of Jerry Crew Thereafter, he would return. fight the second but warned Blocker, Blocker and Alan as well appellant Eugene joined friends, group proceeded as several of his other and the to there, appellant group house. Once and his con- Mayo’s Crew, Hill and several other Mayo, Darryl youths. fronted resumed until the fighting police Smith and Crew arrived left, the After the up argument. police fight and broke alley Mayo’s continued in an behind house before it was Then, dispersed by Mayo’s Mayo’s group sister. walked to high they school where were confronted nearby by Smith to fighting and his friends. Smith wanted continue Crew, him Mayo but informed that Crew had not come with them he did not to fight anymore. because want With this response, suddenly Smith dashed toward the corner where shouted, “now, Eugene Blocker stood and now” while simul- taneously making two downward motions with his right hand, finger pointing. Thereupon, index Blocker fired one gun fatally shot from a wounded Hill. The Darryl Smith found the “legally Court accountable” and, act Hill shooting upheld Blocker’s consequently, degree, the convictions of murder of the third criminal conspiracy, possession of an instrument of pos- crime and session of a prohibited weapon. offensive
Instantly,
appellant proffers
the accounting of
companions,
two female
present
who were
at the scene of
the shooting,
dispute
complainant’s
testimony that he
(Ford) shouted,
ahead.
“Go
Now” immediately preceding
Beecher,
firing
of the 6 shots
4 of
which struck the
Smith,
Here,
complainant.
as in
these conflicts in the
for the
Common
testimony
resolve,
were
fact-finder to
Yost,
wealth v.
(1978),and,
as the
demonstrates,
record
the trial court found that Ford did
yell, “Go ahead. Now.” We are not persuaded to alter
such a determination
the absence of record evidence that
it was so unreliable and contradictory that the fact-finder
Cristina,
erred in making
finding.
*9
44,
(1978);
481 Pa.
Moreover,
case,
in this
the record not only shows that the
appellant
together
was
with his
prior
confederates
to and
during
homicide,
the commission of the attempted
he
but
supplied
(Alphonso Beecher)
assailant
with the means
(a
gun) by
.32 caliber
which to carry out the assault. See
Coccioletti,
Commonwealth v.
493 Pa.
alleged co-conspirators is indispensable element of the crime; however, mere association presence, or knowl edge that proposes another to commit act, an unlawful will not establish a conspiracy absent proof that the accused became an partner active in the criminal enterprise with knowledge of the agreement) and compare Commonwealth Bachert, supra. As for the sufficiency the evidence to sustain appellant’s conviction for Aggravated Assault and Recklessly Endangering Person, Another we do not take issue with aspect of the trial court’s verdict. To
explicate,
guilty
one is
of Attempted Murder if he takes a
*10
step
substantial
toward the commission of a killing, specific
intent in mind to commit such an act. See
39,
Commonwealth v.
310
Griffin,
Pa.Super.
Next, see Aggravated we that Assault is committed when person “attempts to cause serious bodily injury to anoth- er, or causes such injury intentionally, knowingly, or reck- lessly under the circumstances manifesting extreme indif- ference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Recklessly Endangering Another Person oc- curs when a person “recklessly engages in conduct which places or may place another person in danger of death or § serious bodily injury.” 18 Pa.C.S.A. 2705. The element of recklessness may be demonstrated by showing that an accused acted in conscious disregard of a substantial and unjustifiable risk that death or bodily serious injury would result, 18 302(b)(3), Pa.C.S.A. or it may be established conduct which is committed intentionally knowingly. 18 § 302(e). Pa.C.S.A.
Consequently, when the Commonwealth established appellant’s co-conspirator Beecher shot and wounded the victim four back, times this evidence was suffi cient to constitute the commission of an Attempted Murder. See However, Commonwealth v. Bey, supra. because the facts that went to establish commission of such an
293
prove appellant
the same as those to
exactly
offense were
Assault
guilty Aggravated
Recklessly Endangering
Person, the latter
merged
Another
two offenses
with the
sentencing purposes.
Murder conviction for
Ashe,
102,
ex rel.
v.
343 Pa.
Moszczynski
Commonwealth
104-105,
920,
(1941);
21 A.2d
921
see also Commonwealth
Nelson,
275,
(1973);
The last two offenses to caption be dealt with under the sufficiency of of the evidence appellant’s will be convictions for a Firearm in Carrying a Public Place and a Carrying Firearm Without a License. As for the Possession of an conviction, Instrument of Crime it appropriately is more dealt in the context of the propriety sentence thereto, in regard entered and is discussed infra.
All parties agree,
court,
including the trial
that be
cause the Commonwealth failed to introduce
evidence
any
of non-licensure in regard to the
of Carrying
offense
a
License,
Firearm Without a
such a conviction cannot stand.
McNeil,
See Commonwealth v.
461 Pa.
offense. See Commonwealth v. Bundridge, Pa.Super.
However, because lack a of license is not made an ele- offense of ment of the a Firearm on Public Carrying Streets Property Philadelphia (18 6108), or Public Pa.C.S.A. see 399 A.2d Bigelow, Monroe, Pa.Super. Commonwealth v. (1980),the prosecution’s prove failure to licensure appellant’s is not fatal to conviction for offense. An examination evidence reveals that the victim encountered the appellant and Kevin Mason along house, the way to Jones’ to was which victim summoned by Mason, together. three walked into the house entering Within fifteen minutes after the premises, appel a pistol pants and, lant removed from his handing while it to Beecher, Alphonso remarked that he not could “take this Shortly thereafter, bust.” the victim was shot Beecher in a at the nearby park appellant. direction From the complainant’s accounting having met the on the house,8 can way the Jones’ it reasonably be inferred that appellant possessed the on person, prior firearm his to the shooting, public as he walked on a in Philadelphia. street Monroe, See supra; Goosby, if, Even prosecution had not arguendo, proven that the appel lant personally street, carried the gun public place it did introduce substantial evidence that his accomplice, *12 Beecher, and the weapon public carried used in place pursuant appellant’s to direction. that We find such evi dence would also the trial trier justify judge, the of fact here, in holding appellant for legally co-conspir accountable ator carrying Beecher’s use of and the firearm. See Com Smith, monwealth v. supra. Although the conviction un der Section the 6108 withstands of a scrutiny sufficiency Specifically, appellant 8. that he testified "ran into Thaddeus Ford and Breeze, Streets, Kevin Mason ... on Point and between Titan 20th” making way while his to Leon house Jones’ on the 1900 block of Titan 13) (N.T. Street. The three went then to Jones’ house. examination, vacated, nonetheless, be- the sentence will be of one sentence the interdependence upon of the cause course taken (see by note and the of action infra) other succeeding part Opinion. in the of this this Court Having sufficiency question, dispensed appellant’s to allegation we now turn our attention sentencing multiple his and on because “conviction ... i.e., Murder, offenses[, Attempted inchoate Criminal Con spiracy Crime,] and Possession of an Instrument of ar[o]s[e] commission of one ultimate crime is barred out of the [such] § improper.” (Ap 18 Pa.C.S.A. 906 and was therefore 9) The pellant’s Brief at Commonwealth counters that challenge as the “offers this for the appellant inasmuch appeal[,] first time on ... this claim has been waived.” (Commonwealth’s 8) Brief at More particularly, Com appellant’s monwealth asserts that failure to attack his level, post-trial convictions at the as violative of 18 Pa.C. § 906 (prohibiting multiple S.A. convictions for conduct crime), designed single to culminate in the commission of a precludes him assailing legality from of his sentences averment, now at the In appellate support level. of such an the Commonwealth cites the decisions of this in Court Jackson, Pa.Super. Commonwealth v. Sheldon (1979) Gadson, and Commonwealth v. both which held that an assault on the proscribed by convictions offenses (i.e., Pa.C.S.A. Criminal Possession of Conspiracy, Instruments of Crime and Prohibited Weapons,) Offensive was waived by appellants’ failure to raise the issue post-trial However, motions. appellants unlike the Jack Gadson, son Ford is questioning lawfulness sentences imposed upon his convictions.9 As such the claim propriety It is true that makes reference in his brief to the Murder, Conspiracy of his convictions for Criminal Possession of an of Crime in the context Instrument of inchoate offenses, Chapter as defined in Crimes Code. See 18 Pa.C.S.A. 901, 903 and §§ appellant’s 907. The Commonwealth seizes on this to label purely questioning claim as one of his We do convictions. agree, gives reading not for the Commonwealth too narrow a
296 Common
has not
and is
us.
properly
been waived
before
Walker,
v.
323,
wealth
This
is consistent
most recent
position
pro
Court’s
Aczel,
Commonwealth v. Von
nouncement in
295 Pa.Super.
242,
(1981) (Commonwealth’s
441
for
A.2d 750
Petition
17, 1982),10
Limited Reconsideration Denied March
wherein
claim,
held
906 sentencing
we
that a Section
not
albeit
motions,
in post-trial
raised
was
at
appellate
reviewable
the
our decision on
level. We based
the oft-stated precept that:
propriety
“As to the
the
inquiring into
validity
sentence,
as to
question
legality
...
the
the
is
sentence
waived,
never
the fact that it was not
in the
despite
raised
Walker,
court below. See
v.
[supra];
Commonwealth
Paige,
133,
Pa.Super.
287
429
1135
A.2d
Lawton,
v.
(1981);
Commonwealth
40,
272
414
Pa.Super.
Id.
(1980).”
246,
295 Pa.Super.
at
In illegality of sentence is anot waivable “[t]he matter and may appellate be considered courts of 11 (Citations omitted) sponte.” Commonwealth sua Corn- Rather, appellant’s position. interpret appellant’s argument we one as alleging erroneously that the trial court convicted sentenced him (see 9), Appellant’s
for three
remedy
inchoate crimes
Brief at
for
sentence,
amending
vacating
which is either
the sentence for the
offenses,
remanding
resentencing.
lesser
for
See Commonwealth
Maguire,
Pa.Super.
42 Pa.C.S.A.
§ 706.
requires mentioning
It
that the Commonwealth’s Petition
Re-
10.
specifically
consideration was limited
to whether
waived his
claim, having
post-trial
Section 906
it
failed to
raise
motions.
sentences,
It
imposition
duplicitous
should be
that the
noted
White,
instantly,
which is the case
see
beyond
n.
power
400 A.2d
198 n. 8
are
*14
Thomas,
263, 268,
monwealth v.
Pa.Super.
291
435 A.2d
Aeschbacher,
901,
(1981);
903
276 Pa.Su-
Phillips,
Commonwealth v.
554,
(1980);
A.2d 596
per.
419
109,
(1978)
Com-
Consequently, despite
argu
the Commonwealth’s
has not
contrary,
ment to the
we hold that the
waived
imposed
his attack on the
of the sentence
legality
Murder,
Attempted
Conspiracy
for
Criminal
and Possession
Smith,
of an Instrument of Crime. See Commonwealth v.
507,
(1982). Thus,
Pa.
454
499
we find the appel
lant’s convictions for the three
inchoate
aforementioned
§ 906,
crimes to be violative of 18 Pa.C.S.A.
provides:
which
A
not
person may
be convicted of more than one offense
by
chapter
designed
defined
for conduct
commit
or
to culminate
the commission of the same crime.
All three offenses fall
the purview
Chapter
within
9 of
Code,
the Chapter
906,
Crimes
referred to in Section
and
it is
from
apparent
our review of the facts
offenses
perpetrated
were
objective
one
mind—the (attempt
ed)
killing
Lawrence
Accordingly, appellant’s
Brown.
for
conviction
the three crimes was improper. Common
Aczel,
wealth v.
supra;
Von
Commonwealth v. Herbert
Jackson, supra; Commonwealth v.
Tingle,
275
Pa.Super.
489,
(1980);
Jackson,
Commonwealth v. Ronald
In light court, of the error committed the trial we have option either to remand for or resentencing amend the Aczel, Commonwealth v. Von directly. sentence supra; Turner, Commonwealth v. Sandor supra; Pa.C.S.A. § 706. we think Instantly, it advisable to vacate judg- and, therefore,
jurisdiction
sentencing
court
can be considered
despite
concerning
our normal
sponte
rules
waiver and sua
review.
359,
15,
Schilling,
370 n.
431 A.2d
(1981)
cases);
(citing
n.
see also Commonwealth v.
Walker,
468 Pa.
330 n.
362 A.2d
230 n. 3
ments
sentence and remand for resentencing.
do so
We
1)
sentencing
imposed
because:
court
terms
consecutive
years
of five to ten
for
imprisonment
Criminal Conspiracy
Murder,
and
with a concurrent term of
two
years
one-half to five
for Possession of an Instrument of
Crime;
2)
the conspiracy and attempt offenses are each
§§
graded
the second
18 Pa.C.S.A.
degree.
felonies of
preceding points
903 & 905. The
counsel against our vacat
ing the
sentence
either the
conspiracy
attempted
charge
murder
without
since such a
remanding,
practice is
followed, normally, where we vacate the
sen
concurrent
tence of a lesser offense and let stand the sentence for the
greater
Kinnon,
offense. See Commonwealth v.
*15
28,
Super.
(1982);
sentence,13 our reluctance to
our
for
judgment
substitute
(as,
sentencing
example,
that of the
court
to
one
which
affirmed, and,
of the three inchoate convictions
should be
turn,
vacated)
which sentences should be
is valid. The
to which
decision as
course to follow in
to
regard
inchoate crimes impacts directly on the manner of sentenc
ing
or
to
(concurrently
consecutively) as
some of
other
offenses, e.g.,
a
Carrying a Firearm on
Public
Street
Property
Philadelphia.
Public
note
supra.
See
for the Aggravated
Recklessly
As
Assault and
En
dangering
convictions,
Another Person
since no judgments
(sentences) per se
entered
were
the lower
court because
determined,
so,
it
and rightly
merged
that these offenses
for sentencing purposes
with the
Murder convic
tion,
merely
we
hold that the evidence was sufficient to
support such convictions. See Commonwealth ex rel.
Ashe,
Holly
(1951) (As
is well
known,
judgment
in criminal
is the
case
sentence and
conviction;
not the
judgment
final
in a criminal case means
Also,
presence
note
we
that the trial court
to the
admitted
of some
part
on its
confusion
as to those
which
offenses for
could be
convicted
sentenced
which
vis-a-vis those for
such was not the
Accordingly,
case.
it
decided
“defer further consideration of these
Court____”
sentencing
(Lower
guidance
pending
Superior
issues
from the
*16
7)
Opinion
Court
at
judgments
13. The
of
ordered
sentence
the court consist of:
Conspiracy
years;
Criminal
at Bill No. 631—five to ten
Attempted
years,
Murder at Bill No.
ten
627—-fiveto
served
be
631;
consecutively to the sentence at Bill No.
an
Possession
Instrument
Crime
Bill No.
at
630—two and
years,
concurrently
to
631;
one-half
five
served
to be
with the sentence at
Bill No.
Carrying
Carrying
a Firearm in a
Place
a
Public
Firearm Without
at
years,
License
Bill No. 629—two and one-half to five
to be
consecutively
served
to the sentence at Bill No. 630 and concurrent-
631;
ly with the sentence at
No.
Bill
Aggravated
Recklessly
Assault at
No.
Endangering
Bill
626 and
imposed
Another Person at Bill No. 628—no sentence was
for either
conviction since the
court
merge
trial
deemed both offenses to
purposes
sentencing.
Murder conviction for
sentence); Commonwealth v. Maguire,
80,
307 (1982);
The prospects that such a sentence may be en
tered is not violative of one’s Fifth Amendment right to be
free from being punished twice for the same offense. See
Pearce,
711, 717,
North Carolina v.
2072,
U.S.
89 S.Ct.
2073, 2076,
(1969) (double
offense). bar, In the case at the fact that there was no initial sentence entered for either Aggravated Assault or Recklessly Endangering Person, Another the Constitutional prohibition against altering a sentence that results in an punishment increased for the same offense is obviated. See Johnson, Commonwealth v. 269 Pa.Super.
(1979);
Walter,
240 Pa.Super.
Tomlin,
232 Pa.Super.
On this exact subject the Third
held,
Circuit
of Appeals
Court
Busic,
United States v.
(3d Cir.1981),
301 sentence the trial judge remaining counts, on the than, than, may greater which be less or the same as the original sentence. at 953.
Id.
The Third Circuit also stated:
Because defendants’ initial composite sentences would not be increased by analysis their on resentencing, the process due protections against vindictiveness alluded to Pearce, in North Carolina v. supra, are inapplicable Furthermore, here. appeal because the could not result in a higher sentence than that originally imposed, there could be no appeal. deterrent to an if were, Even there the possibility that a defendant might be deterred from the exercise of legal right to appeal does not violate the clause, due process see Bordenkircher Hayes, 434 U.S. 357, 363, 663, 667-668, 98 S.Ct. 54 L.Ed.2d 604 Clause, the Double Jeopardy see v. Stynch- Chaffin Combe, 17, 29, 412 1977, 1984, U.S. 93 S.Ct. 36 L.Ed.2d n. Id. at 951 12. Accord United States v. Henry, F.2d (5th Cir.1983). Likewise, in the case sub judice, appellant’s aggregate sentence on remand will not exceed original sentence, regardless of whether the term of imprisonment for Aggra- vated Assault cannot (18 exceed 10 years Pa.C.S.A. [which §§ 2702(a)(1) 1103(2)) & or Recklessly Endangering Anoth- ] [imprisonment er Person cannot (18 exceed 2 years Pa.C. §§ S.A. 2705 & 1104(2))] may be substituted for the At- tempted (i.e., Murder sentence 5 to years).
Thus,
us,
based on the
we,
record before
as did the Court
Busic,
express
need not
any opinion as to whether the
aggregate
new
sentence may
greater
be
than
original
sentence. But see United
DiFrancesco,
States v.
449 U.S.
(1980)(Court
S.Ct.
sentence, prohibition violates neither the against multiple punishments prohibition nor the against multiple trials em- in the Jeopardy bodied Double Clause of the Fifth Amend- ment).
Accordingly, following ruling Judgments is made: Murder, sentence for Criminal Conspiracy, Carrying a Firearm on a Public Street or in Property Public Philadelphia, Carrying a Firearm Without a License and Possession of vacated, an Instrument of Crime are and the case is remanded for proceedings consistent with Opin- ion. relinquished. Jurisdiction is
JOHNSON, J., files a concurring opinion.
JOHNSON, Judge, concurring: Although I concur in the majority’s determination to vacate the judgments of sentence and remand the instant court, case to the trial I note my disagreement concerning the majority’s alternative determination that evidence of co-conspirator possession Beecher’s weapon can, itself, support appellant’s conviction for carrying firearms § in Philadelphia, 18 6108. Pa.C.S.A.
My
Smith,
review
Pa.
support
cited for
by the majority, fails to
reveal any specific discussion on the issue of whether the
in
defendant
Smith could be held legally
accountable
a
co-conspirator’s possession
weapon,
opposed
a
as
to the
act of shooting
332-334,
the victim.
I agree cannot person can be convicted under 18 Pa.C.S.A. 6108 for possession another’s of a weapon by means of an accomplice or conspiracy view, In theory. my section is personal a violation of and cannot be imput- ed to another.
George Hatalowich, Audry HATALOWICH and C. his
wife, Appellants, *19 BEDNARSKI, Kate E. Richard Bednarski and Delores J. Bed narski, wife, Olesh, Strawberry his Edward E. R. Kenneth and Warman, Individually, Olesh, Edwin G. E. Edward Kenneth R. Warman, Strawberry, W.P.Q.R.-F.M., and Edwin G. t/d/b/a W.P.Q.R.-F.M., unregistered fictitiously an enterprise, named Broadcasting Inc., Company, corp., Warman Tom a Hun chuck, Hunchuck, individually Thomas Tom a/k/a Hun employee chuck Thomas Hunchuck as a/k/a and servant of Olesh, Strawberry, Edward E. Kenneth R. and Edwin G. Warman, Olesh, individually or E. Edward R. Kenneth Straw berry, Warman, W.P.Q.R.-F.M. and Edwin G. or t/d/b/a W.P. Q.R.-F.M., unregistered fictitiously an named business enter prise, Co., Broadcasting Inc., corp. Warman
Superior Pennsylvania. Court of
Argued Feb. 1982.
Filed June