Opinion
March 17, 1975.
September 22, 1975.
Criminal Law — Possession of marijuana with intent to deliver — Corrupting morals of minor — Conspiracy — Penal Code — Indictment charging defendant with corrupting morals of a minor generally and not by specific conduct — Presence alone not sufficient to sustain conviction of conspiracy.
1. Where a defendant is charged in the indictment with corrupting the morals of a minor by a specific act, the failure of the Commonwealth to prove the corrupting act precludes conviction on the corruption charge.
2. Where a defendant is indicted for corrupting the morals of a minor generally, and not charged with corruption by furnishing marijuana, if the Commonwealth's proof is sufficient to support conviction of corruption, the failure to prove the charge of possession of marijuana with intent to deliver is not fatal.
3. "Whoever, being of the age of eighteen years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years, or who aids, abets, entices or encourages any such child in the commission of any crime . . . is guilty of a misdemeanor." Penal Code of 1939, § 4532.
4. Where a nine-year-old is given something to smoke and is told that it is "pot" and the minor knows that "pot" refers to marijuana, this conduct tends to corrupt the morals of a minor.
5. Mere presence at a crime is insufficient to sustain a conviction of conspiracy.
6. Conspiracy is the agreement, combination or common understanding, to do an unlawful act, or to do or commit a lawful act in an unlawful manner.
7. The heart of the offense of conspiracy is the common understanding, no matter how it came into being.
8. Evidence to sustain a charge of conspiracy must be such as reasonably and naturally justifies an inference of guilt of the accused and is of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt.
9. A conviction of conspiracy will not be allowed to stand if it is based solely upon suspicions and conjectures.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1037, Oct. T., 1974, from judgments of sentence of Court of Common Pleas of Delaware County, March T., 1973, Nos. 249 and 250, in case of Commonwealth of Pennsylvania v. Thomas Goodyear and Gary Goodyear. Judgments of sentence imposed on appellant, Thomas Goodyear, on both conspiracy and corrupting charges reversed and appellant, Thomas Goodyear, discharged. Judgment of sentence imposed on appellant, Gary Goodyear, on charge of conspiracy reversed. Judgment of sentence imposed on appellant, Gary Goodyear, on charge of corrupting vacated and case remanded to lower court for resentencing only.
Indictments charging defendants with violation of The Controlled Substance, Drug, Device and Cosmetic Act, corrupting the morals of minors and conspiracy. Before WRIGHT, J., without a jury.
Findings of guilty entered. Defendants' motions in arrest of judgment as to convictions for violation of The Controlled Substances Act granted and judgments of sentence entered on remaining charges. Defendants appealed.
Robert P. Anderman, and Anderman and Hughey, for appellants.
John G. Siegle and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Submitted March 17, 1975.
Appellants contend that because the Commonwealth's evidence was insufficient to convict them on the charge of possession of marijuana with intent to deliver, their convictions on the charges of conspiracy and corrupting the morals of a minor cannot be sustained.
April 14, 1972, P.L. 233, No. 64, § 13, imd. eff., as amended 1972, Oct. 26, P.L. 1048, No. 263, § 1, imd. eff., 35 P. S. § 780-113 (a)(30).
June 24, 1939, P.L. 872, § 302, former 18 Pa.C.S.A. § 4302.
June 24, 1939, P.L. 872, § 532, added 1953, June 3, P.L. 277, § 1 as amended 1961, July 25, P.L. 848, § 1, former 18 Pa.C.S.A. § 4532.
On March 7, 1973, the Grand Jury of Delaware County returned three bills of indictment against appellants. The first charged appellants with a violation of The Controlled Substance, Drug, Device and Cosmetic Act. The second indictment charged appellants with the corruption of the morals of one William Hamill, but alleged no specific act of corruption. The third indictment charged appellants with conspiracy by virtue of their "(1) Knowing or intentional possession of controlled substances, possession with intent to deliver and distribution to persons under age 18; . . . (2) Corrupting morals of children."
The Commonwealth's evidence consisted entirely of the testimony of nine-year-old William Hamill. The child stated that on January 5, 1973, he went to the appellants' residence where appellant-Gary Goodyear offered him a "puff" of something resembling a cigarette. Appellant-Thomas Goodyear was present at this time. William Hamill testified that the object consisted of white paper wrapped around a green substance, that he asked Gary Goodyear what the substance was and that Gary told him it was "pot." He also stated that while he was at the Goodyear residence appellant-Thomas Goodyear sold a zip-lock bag of the same substance to a person named Rich.
The trial court found appellants guilty of all three charges. Appellants filed motions in arrest of judgment and for a new trial on April 10, 1973. The court en banc arrested judgment on the conviction for violation of The Controlled Substances Act because the Commonwealth failed to prove that the substance which appellant-Gary Goodyear gave William Hamill was in fact marijuana and that appellant-Thomas Goodyear actually sold marijuana. The court en banc, however, refused to grant a new trial or arrest judgment on the conspiracy and corruption charges. This appeal followed.
Appellants contend that the corruption and conspiracy convictions cannot be sustained because of the Commonwealth's failure to prove that the substance given William Hamill was in fact marijuana. Appellants attempt to analogize the instant case to Commonwealth v. Lambert, 226 Pa. Super. 41, 313 A.2d 300 (1973), in which this Court held that if a defendant is charged in the indictment with corrupting the morals by a specific act, the failure of the Commonwealth to prove the corrupting act precludes conviction on the corruption charge. In Lambert, the appellant was indicted for corrupting the morals by furnishing dangerous drugs, but the Commonwealth was unable to prove that the pills appellant gave the minor were dangerous drugs. The Commonwealth's proof, therefore, did not "measure up to the charge made in the indictment." 226 Pa. Super. at 44, 313 A.2d at 301, quoting Commonwealth v. Aurick, 342 Pa. 282, 291, 19 A.2d 920 (1941). In the present case, appellants were indicted for corrupting the morals of William Hamill generally, and were not charged with corruption by furnishing marijuana. Thus, if the Commonwealth's proof was sufficient to support conviction of conspiracy to corrupt and corruption, the failure to prove the charge of possession of marijuana with intent to deliver is not fatal. While it may be true, as appellants contend, that the use of narcotics "was the entire thrust of the Commonwealth's case from beginning to end and indeed the only reason for the prosecution. . . .", the legality of the indictment charging corruption is not impaired.
Section 4532 of the 1939 Penal Code is extremely broad: "Whoever, being of the age of eighteen years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years, or who aids, abets, entices or encourages any such child in the commission of any crime . . . is guilty of a misdemeanor." (Emphasis added.) The record supports the lower court's conclusions that William Hamill knew that "pot" was marijuana and that he believed Gary Goodyear offered him a marijuana cigarette. The court held, therefore, that despite the Commonwealth's failure to prove that the substance was in fact marijuana, appellant-Gary Goodyear's telling a nine-year-old that he was being given marijuana was conduct tending to corrupt. See, e.g., Commonwealth v. Meszaros, 194 Pa. Super. 462, 465, 168 A.2d 781 (1961). Under the unique facts presented by this case, the holding of the court below is correct, and the conviction of Gary Goodyear on the charge of corrupting the morals of a minor is affirmed.
As an alternative ground for its holding, the court below noted that the Act of June 24, 1939, P.L. 872, §§ 647 and 648, former 18 Pa.C.S.A. § 4647 and 18 Pa.C.S.A. § 4648, make it a crime to furnish tobacco to minors, and to furnish cigarettes or cigarette paper to minors. These statutes cannot serve as a basis for conviction on the corruption charge because the Commonwealth's own proof completely negates the possibility that appellants violated these provisions. William Hamill testified that the substance he smoked was definitely not tobacco. Furthermore, as used in § 4648, "cigarette" must mean a tobacco cigarette. See Cigarette Tax Act, 1970, July 22, P.L. 513, No. 178, art. I, § 101 et seq., 72 P. S. § 3169.102(3).
In its opinion, the lower court states that "[t]he facts here show that these Defendants committed independent acts that would `tend to corrupt' . . ." This conclusion is not supported by the record. The only evidence implicating Thomas Goodyear is the fact that he was present when his brother Gary told William Hamill to smoke some "pot." There is no evidence, other than mere presence, which indicates that Thomas Goodyear participated in the corruption of William Hamill's morals, and mere presence is insufficient to convict. See Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966). Therefore, unless the record supports a finding of conspiracy, Thomas Goodyear's conviction on the charge of corruption must be reversed, and the sentences imposed on both appellants on the charge of conspiracy must be reversed.
The definition of conspiracy was set forth in Commonwealth v. Schwartz, 210 Pa. Super. 360, 380-381, 233 A.2d 904 (1967), affirmed by an equally divided court, 432 Pa. 522, 248 A.2d 506 (1968), cert. denied 398 U.S. 957: "The conspiracy is the agreement, combination or common understanding, to do an unlawful act, or to do or commit a lawful act in an unlawful manner: Com. v. Rosen, 141 Pa. Super. 272, 14 A.2d 833. The heart of the offense is the common understanding, no matter how it came into being: Com. v. Yobbagy, 410 Pa. 172, 188 A.2d 750; Com. v. Neff, 407 Pa. 1, 179 A.2d 630.
"`. . . evidence to sustain a charge of conspiracy must be "such as reasonably and naturally justifies an inference of guilt of the accused and is of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt. . . . A conviction will not be allowed to stand if it is based solely upon suspicions and conjectures."' Com. v. Yobbagy, 410 Pa. 172, 176, 177, 188 A.2d 750; Com. v. Evans, 190 Pa. Super. 179, 201, 154 A.2d 57." The Commonwealth's proof in the present case is totally devoid of any evidence of agreement. There is no evidence, other than mere presence, which implicates Thomas Goodyear in the corruption of William Hamill's morals, and there is no evidence on which to base an inference that the brothers had agreed to commit an unlawful act. The conspiracy convictions of both appellants were based on no more than mere conjecture and cannot be allowed to stand.
The judgments of sentence imposed on appellant-Thomas Goodyear on both the conspiracy and corrupting charges are reversed, and appellant-Thomas Goodyear is ordered discharged. The judgment of sentence imposed on appellant-Gary Goodyear on the charge of conspiracy is reversed. The judgment of sentence imposed on appellant-Gary Goodyear on the charge of corrupting is vacated, and the case is remanded to the lower court for resentencing only, in accordance with Commonwealth v. Lockhart, 223 Pa. Super. 60, 296 A.2d 883 (1972).