Sunday, July 27, 2008

DA's Brief Opposing Cuadra's Petition for Writ of Habeas Corpus (VII. Accomplice Liability)

VII. Accomplice Liability

In Commonwealth v Coccioletti 425 A.2d 387 (Pa. 1981), the court also noted, “The least degree of concert of collusion is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Mobley 467 Pa. 460, 359 A.2d 367 (1976). In this case the record shows that the appellants were together prior to and during the homicide. Coccioletti stated that both appellants had been shooting across the roadway. Furthermore, appellants acted in concert to conceal their firearms and fabricate statements concerning the whereabouts of their firearms. It is unnecessary for the Commonwealth to show which appellant actually fired the fatal shot, because whichever appellant was not the actor would be equally responsible as an accomplice. Commonwealth v. Bradley 481 Pa. 223, 392 A.2d 688 (1978), 18 Pa.C,S.A. § 306. We conclude that the evidence was sufficient to sustain a conviction of murder of the third degree as to both appellants.”

In this case, the Defendants were together before, during and after the homicide. They discussed their grandiose plans with Justin Hensley, bought the suspected murder weapon together, traveled hundreds of miles together to get to Dallas, Pennsylvania, stayed in the same room together, had each of their respective cell phones bouncing off the County Club Road Tower in Dallas, Pennsylvania near the time of the murder, viewed the master tapes of the victim in their Virginia Beach home together, destroyed the evidence together and finally were attempting to reach a major objective of the conspiracy-the recruitment of Sean Lockhart—together. They had done reconnaissance prior to the homicide on the victim’s home. Mr. Kerekes was inside of the victim’s home the evening of the murder and described the model form to be signed by Cuadra, the victim’s the plasma TV and $20,000 sound system. Two witnesses, Amy Zamerowski and James Gilbert put the Nissan Xterra, rented from Virginia Beach the day before by Mr. Cuadra, in the victim’s driveway immediately before the inferno was called in. Amy glances at her car clock as she is driving past the victim’s home and parking in the driveway next door. It is 8:26 p.m. See Prelim. Hr'g. Traris., Vol. I,, pg. 146, line 2. Chief Vivian, of the Dallas Township Fire Dept states the fire in called in at 8:35 p.m. ld. at pg. 162, line 3. With Mr. Kerekes’ admission that he was at the victim’s home that evening, it strains logic to believe that Mr. Kerekes was “merely present” while a decapitated corpse is lying near the front door, Mr. Cuadra is loading up the Nissan Xterra with computers, laptops, documents and a watch, and then a fire is intentionally started.

The least degree of concert of collusion is sufficient to sustain a finding of Mr. Kerekes’ responsibility as an accomplice; here he provided and paid for the hotel room Tuesday night, the evening before the homicide and Wednesday night the evening of the homicide.

Defendant Kerekes concurred in Mr. Cuadra’s description of “my dude coming in and it was over.” Mr. Kerekes never voiced an objection that “my dude” was not him. Justin Hensley noted that the defendants lived together, were lovers and ran Boybatter, a pornographic Website, together. See Prelim, Hr’g. Trans. Vol. 1. pg. 63, 66, 68, 79, 98-99. As to the defense argument that it could have been someone else Mr. Cuadra was referring to, the hotel room reveals only two occupants, not three, Mr. Cuadra states “we” did surveillance. Mr. Kerekes did not voice any objection to that statement or interpose a comment that it was someone else.

In Commonwealth, v. Lambert 795 A.2d 1010 (Pa. Super. Ct., 2002), the court wrote:

“A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the offense. 18 Pa § 306(b)(3). “Accomplice" and the "culpability of the accomplice” are defined in 18 Pa,C.S.A. § 306(c)(1) and 306(d).”

“(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(ii) aids or agrees or attempts to aid such other person in planning or committing it;

(d) Culpability of accomplice, — When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.”

18 Pa.C.S.A. § 306(c)(l) and 306(d).

“With these statutory concepts in mind, we turn to the issues in this case, whether the evidence is sufficient to support convictions for conspiracy, burglary and murder of the second degree. We first focus on conspiracy.”


“A conviction for criminal conspiracy, 18 Pa § 903, is sustained where the Commonwealth establishes that the defendant entered an agreement to commit or aid in an unlawful act with another person or persons with a shared criminal intent and an overt act was done in furtherance of the conspiracy. Commonwealth v. 546 Pa. 271, 684 A.2d 1025, 1030 (1996), citing 18 Pa.C.S.A. § 903.”

“The essence of a criminal conspiracy is the common understanding that a particular criminal objective is to be accomplished. Commonwealth v. Keefer 338 Pa.Super. 184, 487 A.2d 915, 918 (1985), Mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient. Rather, the Commonwealth must prove that the defendant shared the criminal intent, i.e., that the Appellant was “an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement.” Hennj 753 at 253. The defendant does not need to commit the overt act; a co-conspirator may commit the overt act, Commonwealth v. Johnson 719 A 778, 784 (Pa.Super 998) (en banc), appeal denied, 559 Pa. 689, 739 A.2d 1056 (1999).”

“A conspiracy is almost always proved through circumstantial evidence. Commonwealth v. Swerdlow 431 Pa.Super. 453, 636 A.2d 1173, 1176 (1994). “The conduct of the parties and the circumstances surrounding their conduct may create ‘a web of evidence’ linking the accused to the alleged conspiracy beyond a reasonable doubt,” Johnson 719 A.2d at 785. The evidence must, however, “rise above mere suspicion or possibility of guilty collusion,” Swerdlow 636 A.2d at 1177.”

This Court has identified factors to be considered:

“Among the circumstances which are relevant, but not sufficient 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, Commonwealth v, Carter 272 Pa.Super. 411, 416 A.2d 523 (1979).” See also Commonwealth v. OJ 322 Pa.Super. 442, 469 A,2d 1072, 1075 (1983). See also, Commonwealth v. Azim 313 Pa.Super. 310, 459 A.2d 1244 (1983).

“Once there is evidence of the presence of a conspiracy, conspirators are liable for acts of co conspirators committed in furtherance of the conspiracy. Commonwealth v. Stocker 424 Pa.Super. 189, 622 A.2d 333, 342 (1993). Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his coconspirators taken in furtherance of the conspiracy. Commonwealth v. Soto 693 A.2d 226, 229-230 (Pa.Super.1997), appeal denied, 550 Pa. 704, 705 A.2d 1308 (1997).” See also, 18 Pa.C.S.A. § 306.

“The general rule of law pertaining to the culpability of conspirators is that each individual member of the conspiracy is criminally responsible for the acts of his co-conspirators committed in furtherance of the conspiracy. The co-conspirator rule assigns legal culpability equally to all members of the conspiracy. All co-conspirators are responsible for actions undertaken in furtherance of the conspiracy regardless of their individual knowledge of such actions and regardless of which member of the conspiracy undertook the action.” See also Commonwealth v, Galindes 786 A.2d 1004, 1011 (Pa.Super. 2001).

“The premise of the rule is that the conspirators have formed together for an unlawful purpose, and thus, they share the intent to commit any acts undertaken in order to achieve that purpose, regardless of whether they actually intended any distinct act undertaken in furtherance of the object of the conspiracy. It is the existence of shared criminal intent that “is the sine qua non of a conspiracy.” Commonwealth v. Wayne 553 Pa. 614, 720 A.2d 456, 463-464 (1998), cert, denied, 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80 (1999).

“We now review the record in the light most favorable to the Commonwealth. We examine whether the record reflects that Appellant and Co-Defendant had an agreement that Appellant was to aid Co-Defendant in an unlawful act and that an overt act was committed in the furtherance of the conspiracy. In doing so, we examine Appellant’s association with Co-Defendant, his presence at the scene of the crime and his participation in the crime through his assistance of Co-Defendant.”

“Initially, it is undisputed in the record that Appellant and Co-Defendant have had a long and close relationshin and that Co-Defendant relied on Appellant to be his driver. Appellant and Co-Defendant had been friends for several years at the time of the commission of the crimes. Co -Defendant did not own a car and Appellant customarily drove Co-Defendant in Appellant’s automobile. Co-Defendant’s mother testified that Appellant and Co-Defendant were together frequently and that Appellant occasionally took Co-Defendant to Co-Defendant’s outpatient treatment center. Khadijah testified that Appellant drove Co-Defendant to Kliadijah’s home. Khadijah also testified that every time she went out with Co-Defendant, Appellant always accompanied Co Defendant, Khadijah stated: “Appellant and Co-Defendant go together,” Khadijah further testified that Appellant tried to help Co-Defendant and to “look out for him,” Thus, the record is clear that Appellant and Co-Defendant have had a long and close relationship and that Co-Defendant specifically relied on Appellant to be his driver.”

“Next, the record reflects that Appellant was at the scene of the crime when Co-Defendant committed the criminal acts that are the subject of this appeal. Khadijah testified that Appellant was waiting by his car when Co-Defendant brought Khadijah outside at gunpoint. Indeed, Appellant concedes that it is a proper inference that Appellant drove Co-Defendant back to Khadijah’s home. Therefore, the record shows that Appellant was present at the scene during the commission of the crimes.”

“We last consider Appellant’s knowledge and participation in the object of the conspiracy. We first examine what the record reflects happened over the course of two consecutive evenings at Khadijah’s house in order to gain an understanding of surrounding circumstances of the crimes in

“The record reflects that Co-Defendant had been involved in three “break-ins” of Khadijah’s home over the course of two consecutive nights. The third “break-in” (the second “break-in” on the same night and the “break-in” that is the subject of Appellant’s case) occurred fifteen minutes after Co Defendant left Khadijah’s house when Co-Defendant returned to her house with a gun. Appellant drove Co-Defendant to Khadijah’s house. Appellant double-parked his car on the street directly in front of Khadijah’s home. The passenger door of Appellant’s car remained open. Appellant stood on the Street on the driver’s side of Appellant’s car waiting for Co-Defendant. The place where Appellant was standing was very close in proximity to the front porch of Khadijah’s house.”

“Co-Defendant broke into Khadijah’s home by breaking in the door with enough force to move the chair barricade, Khadijah testified that this entrance caused even more damage to the front door than Co-Defendant’s previous entries had caused. Photographs presented to the jury show that the door was in a Mangled condition, pieces of wood were on the floor and the doorjamb was damaged as the chain had been pulled out from the door.

Co-Defendant brandished a gun when he went upstairs, pushed Ms. Thomas’ bedroom door open and demanded his “f___ing money”. When Ms. Thomas stated she did not have the money, Co-Defendant pointed the gun at Ms, Thomas’ head and shot her in the forehead, Ms. Thomas’s bedroom was located in the front of the house and faced the street in very close proximity as the windows of the bedroom extended over the roof of the front porch.”

“Co-Defendant then put a gun to Khadijah’s side and demanded his money from her. Khadijah and Co-Defendant went to her bedroom and took his money from her dresser drawer. Co-Defendant then took Khadijah, with the gun pointed at her side, down the stairs, outside to the front porch and onto the sidewalk.”

“When Appellant observed that Co-Defendant and Khadijah were outside of Khadijah’s home, Appellant called to Co-Defendant and urged him to “come on” at least three or four times. Co Defendant released Khadijah and, as Co-Defendant entered the passenger side of Appellant’s waiting car, Co-Defendant turned and shot Khadijah. The bullet entered Khadijah’s right side, causing serious internal injuries which required over thirty surgeries. Appellant drove Co-Defendant from the scene.”

“We now examine whether the record reflects a sufficient “web of evidence to support the jury’s determination that Appellant is guilty of criminal conspiracy beyond a reasonable doubt. See, Johnson 719 A.2d at 785. The circumstantial evidence reflects that Appellant and Co-Defendant had a shared criminal plan of committing a burglary at Khadijah’s house. The plan contemplated a quick getaway as evidenced by Appellant keeping his car double-parked very close to the front door of the house with the passenger door in an open position.”

“The plan contemplated the use of unlawful force as evidenced by what Appellant did while Co Defendant used such force. The record reflects the front door of Khadijah’s house was very close to the Street where Appellant was standing outside of his car door, Appellant observed Co-Defendant breaking down the front door and entering the home without the occupants’ consent. The record does not reflect that Appellant said or did anything. Rather, the record reflects that Appellant simply stood outside of his double parked car, with the passenger door in an open position, and waited for Co Defendant to enter and, then, to return. After the gun was shot, fatally wounding Ann Marie Thomas, the record again fails to reflect that Appellant said or did anything. Rather, Appellant remained outside of his car and waited for Co-Defendant to return. When Co-Defendant dragged Khadijah out of the house, Appellant encouraged Co-Defendant at least three times to hurry up. When Co-Defendant shot Khadijah, the record fails to reflect that Appellant did anything to assist Khadijah. Rather, Appellant drove Co-Defendant away from the scene of the crime.”

“This web of evidence” is woven together by virtue of Appellant’s close association with Co Defendant. Appellant’s knowledge of the crime. Appellant’s presence at the scene of the crime and Ap participation in the object of the conspiracy by supporting Co-Defendant in his commission of the burglary Thus, the evidence is sufficient to support a jury’s conclusion beyond a reasonable doubt that Appellant and Co-Defendant engaged in a criminal conspiracy to commit burglary, i.e., what Co-Defendant and Appellant did was in accordance with a shared criminal intent and shared criminal plan to commit a burglary.”

“Finally, we address whether an overt act was committed in furtherance of the conspiracy. Appellant himself did not have to commit the overt act, in order for the overt act to be considered an, element of the conspiracy. I 8 Pa.C.S.A. § 903(e). The Commonwealth may prove the element of an overt act by proving that the person with whom Appellant conspired committed the act “in pursuant of such conspiracy,” 18 Pa.C.S.A. § 903(e). Johnson 719 A.2d at 785. Our review of the record reflects sufficient circumstantial evidence of an overt act for the conspiracy to commit burglary, i.e., the breaking in of the front door by Co-Defendant, A jury could, therefore, conclude beyond a reasonable doubt that Appellant and Co-Defendant shared a common understanding that one of them would actually commit the act of a burglary of Khadijah’s home.”

“Now, we address Appellant’s various contentions respecting his conspiracy convictions. Appellant first contends that he did not share the criminal intent with Co-Defendant because he was unaware that Co-Defendant had forced his way into the home. The record belies his claim. The car beside which Appellant was standing was double-parked directly in front of the house. The front door of the house almost abutted the front public sidewalk, which was a few feet away from the car where Appellant stood. Great damage was inflicted on the front door as a result of Co-Defendant’s breaking in of the door in order to move the chair barricade. A jury could conclude beyond a reasonable doubt that Appellant was aware that Co-Defendant had forced his way into the home and had fired a gun and, thus, shared Co-Defendant’s criminal intent to commit burglary.

“Next, Appellant contends that he was “merely present’ when the crimes occurred. Appellant’s Brief at 22. He relies on Commonwealth v. Menginic 477 Pa, 156, 383 A.2d 870 (1978), Commonwealth v. Kennedy 271 Pa.Super. 206, 412 A,2d 886 (1979), affirmed in part, reversed in parr, 499 Pa. 389, 453 A.2d 927 (1982), and Commonwealth v. John 355 Pa.Super. 372, 513 A.2d 476 (1986). As the following reflects, the initial criminal act in each of these cases was spontaneous and independent of the defendant. Thus, these cases are not helpful to Appellant.

“A spontaneous, unplanned act by a passenger was at question in Menginie supra. The occupants of two cars became involved in a dispute while moving toward the service window of a drive-in restaurant. ., at 871-872. Without warning, a passenger from defendant’s car suddenly exited the car, produced a gun and fired a shot, fatally wounding the victim in the other car. 4 at 872. The defendant and his passengers immediately drove away. Id. Our Supreme Court held that the evidence did not support an inference of an unlawful agreement to kill between Appellant and the shooter. Jd. Rather, the Court concluded, the evidence lacked any inference of an unlawful agreement. Id., at 872-873.”

“A spontaneous assault on a victim by a defendant’s friend was at issue in Kennedy supra. There, defendant’s friend argued with the victim and, when the friend struck the victim, a fight ensued and defendant then joined in the beating. Our Supreme Court stated that these events were consistent with the conclusion that defendant and the other assailant acted “independently and spontaneously” rather than in concert with one another (for purposes of a conspiracy).”

“The defendant’s role as a bystander was at question in Johnson supra. The defendant was standing with a group of patrons in front of a bar when the victim rode by on a bicycle. . One of the patrons uttered, “Here comes a white boy. Let’s get him.” Another patron then pulled out a revolver and shot the victim twice. Our Court held that the evidence showed the appellant, as a bystander, was merely present at the scene of the crime.”

“Appellant was not “merely present’ at the scene as his actions were not spontaneous and not independent of Co-Defendant. Here, unlike Menginie the jury concluded that Appellant drove Co-Defendant to Khadijah’s home for a single purpose, Le., so that Co-Defendant could burglarize Khadijah’s home. Appellant remained until Co-Defendant had completed the plan, and then drove him away. Here, unlike Appellant’s prior close relationship with Co-Defendant, including his services as a driver as well as his actions during the commission of the crimes, support the jury’s conclusion that Appellant and Co-Defendant were engaged in concerted, not spontaneous and independent, activity. Here, unlike Johnson the jury concluded that Appellant was an active participant at the scene of a crime in the criminal plan (and not a mere bystander). Appellant’s argument that he was merely present at the scene of the crime under the authority of Menginie, Kennedy and Johnson fails. In summary, the evidence is sufficient to support the jury’s verdict with respect to Appellant’s conviction for conspiracy.”

In Commonwealth v. Russell 2007 PA Super 376 (Pa. Super. Ct, 2007), the court wrote, “Appellant contends that the trial court abused its discretion by permitting the Commonwealth to introduce evidence that, as a juvenile, she was involved in an incident in which an accelerant was used to start a fire in a juvenile detention facility. At trial, the Commonwealth sought to introduce the evidence of Appellant’s involvement with an accelerant fire as a juvenile to demonstrate that she knew the liquid given to her by Fields was an accelerant from its smell and that it could be used to set the dog on fire. At the conclusion of trial, the trial court issued a cautionary instruction to the jury directing it to consider the evidence as evidence of Appellant’s knowledge of the use of accelerant only and not to infer her guilt from the prior incident.”

“We are satisfied that the trial court did not abuse its discretion by admitting the evidence of Appellant’s juvenile involvement with an accelerant fire, First, it is clear that the evidence of Appellant’s knowledge of the nature of the liquid given to her was crucial for the Commonwealth to establish Appellant’s intent to assist Fields in setting the dog on fire and thereby to prove Appellant’s liability as an accomplice and co-conspirator. See Melendez-Rodriguez 856 A.2d at 1283, Consequently, its probative value far out-weighed its prejudicial effect. See Commonwealth v. Fisher 682 A.2d 811, 816-17 (Pa. Super. 1996). Moreover, after the evidence was admitted for this limited purpose, the trial court issued a cautionary instruction to the jury that explained to the jury how it should consider the evidence in arriving at its verdict. We presume that the jury followed this instruction and that it was sufficient to cure any possible prejudice resulting to Appellant by the admission of this evidence. See Melendez-Rodriguez 856 A.2d at 1287. Accordingly, Appellant’s argument fails.”