Commonwealth v. McCall
2006 PA Super 329, ____ A.2d ____
Decided: November 16, 2006
The Superior Court held that there was sufficient evidence to uphold the trial court’s conviction for criminal conspiracy and PWID when the suspect acted as a lookout during drug transactions and he was carrying a large amount of money in small denominations when arrested.
A police officer set up surveillance on a street in Philadelphia where he saw McCall and a Mr. Rogers standing on the west side of the street. The officer proceeded to watch the two men as an unidentified man approached Rogers. After briefly speaking with the unidentified man, the man handed Rogers an unknown amount of money and Rogers went to a nearby drainpipe to retrieve a plastic baggie. Rogers then handed the man an object from the bag and the man left. While this transaction was taking place, McCall was looking up and down the street.
The officer saw three other men approach McCall and Mr. Rogers and conduct the same transaction with Rogers. After two of these transactions, Rogers handed McCall an unknown amount of money. The officer also notified nearby undercover agents who arrested all three of these men a few blocks away from where the transaction had taken place. A bag of crack cocaine was found on each of these men. The officer then had backup officers arrest McCall and Rogers after witnessing four drug sales. The police retrieved 34 bags holding over 5 grams of crack cocaine in the drainpipe. When the two men were searched, the police found $64 on Rogers and $1,508 on McCall, mostly in small denominations.
The two men were convicted of conspiracy and possession with intent to distribute (PWID). McCall appealed his conviction to the Superior Court stating that there was insufficient evidence to sustain his convictions. The Court disagreed and upheld the convictions.
In order to sustain a conviction for conspiracy, the defendant must have (1) entered into an agreement to commit or aid in an unlawful act with another person, (2) with a shared criminal intent, and (3) an overt act must be done in furtherance of the conspiracy. Based on the evidence applied to these factors, the Court upheld McCall’s conviction. The Court looked at the totality of the circumstances to state that the two men entered into an agreement to sell drugs. Even though he did not handle the drugs, McCall acted as a lookout during the transactions and he was arrested with a $1,508 in small denominations, unlike Mr. Rogers who only had $64. This evidence is consistent with drug proceeds and McCall’s conduct showed an intent to sell drugs. Based on this evidence, the Court held that McCall was a co-conspirator with Rogers.
As a co-conspirator with Rogers, McCall is also guilty of any offense Rogers commits. The Superior Court therefore held that McCall’s conviction for PWID should be affirmed due to the conviction of his co-conspirator on the same charge. Therefore, the Court held that there was sufficient evidence for both charges of McCall’s conviction.