# Commonwealth v. Calderini > Superior Court of Pennsylvania · June 3, 1992 · 416 Pa. Super. 258 URL: https://www.frixlaw.com/law-library/cases/9756864 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. James J. CALDERINI, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** June 3, 1992 - **Citations:** 416 Pa. Super. 258; 611 A.2d 206; 1992 Pa. Super. LEXIS 1468 - **Precedential status:** Published - **Opinion:** Dissent by Hester - **Judges:** Cavanaugh, Wieand, Hester - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756864 ## How later opinions describe it (automated extraction) - stating that while there was no direct evidence placing the appellant at the scene of the robbery, “the evidence that he was driving the getaway car a short time after the robbery, that he falsely identified himself to police, and that he had in his possession fruits of the ro… - holding that a jury instruction given by one trial court will be upheld so long as it sufficiently and accurately apprises a lay jury of the law - finding the trial court's “wholly - 23 - J-S06025-21 superfluous” charge did not constitute reversible error ## Opinion text HESTER, Judge, dissenting: I respectfully dissent from the majority’s conclusion that the evidence was sufficient to support appellant’s conviction of robbery. I believe that the evidence does not establish that appellant knew either before or after the fact that the pharmacy had been robbed. I would reverse the judgment of sentence. Appellant, John Chilton, and Joseph Rometo were charged with robbery and conspiracy. Chilton subsequently pled guilty to robbery; Rometo was appellant’s co-defendant at trial. The trial evidence established the following. Sue Molnar was the Commonwealth’s first witness. She was working at Springdale Pharmacy in Springdale on March 24, 1990, when John Chilton entered the store at approximately 7:30 p.m. Chilton asked for the store’s own *268 er-pharmacist, Sam Tallarico, by first name. Ms. Molnar advised him that another pharmacist was on duty. Chilton asked the pharmacist, Terry Kirin, about literature regarding the side effects of a drug that he said that he was taking. Ms. Kirin retrieved the requested material and brought it to Chilton when he suddenly grabbed her wrist and pushed her to the floor. Chilton then started to kick the cabinet where narcotic drugs were kept. Ms. Molnar screamed for Brenda Rudolph, who was at the cash register, to telephone police. Chilton grabbed a plastic bottle containing the prescription medicine Tylenol with codeine and ran. At trial, Ms. Molnar identified Chilton and said that she personally knew Rometo. She could not identify appellant, and she testified that she did not see either appellant or Rometo on the day of the robbery. Terry Kirin, the pharmacist, testified as follows. She observed Rometo in the pharmacy on the morning of the robbery at approximately 9:30 a.m. She recognized Rometo because he tripped over a card rack, paced, and “really made notice of himself.” Notes of Testimony (“N.T.”), 11/2-5/90, at 25. At approximately 6:30 p.m. that day, Ms. Kirin received a telephone call for a prescription for a controlled substance used to induce sleep. The patient name given was “Linda Rometo,” and the prescribing doctor was “Dr. Miller.” Id. at 26. Since Ms. Kirin could not verify the prescription due to the hour, she refused to fill it. Ms. Kirin also confirmed Ms. Molnar’s version of the robbery. Chilton entered, asked for Sam and materials about a drug, pushed Ms. Kirin to the floor, threatened to kill her, and took Tylenol with codeine from the narcotic drug cabinet. After Chilton started to kick the cabinet, Ms. Kirin stood up, telephoned the police, and went to the front of the store to watch where Chilton fled. At that time, she also saw Rometo walking away from the pharmacy and heading in the same direction as Chilton. They both went toward the parking lot used by pharmacy customers. Ms. Kirin testified that she never saw appellant at any time. She only identified Rometo at trial. *269 Brenda Rudolph was at the cash register in the front of the store when Ms. Molnar told her to call the police and to watch where Chilton went. Ms. Rudolph panicked and ran outside the store, where she saw Rometo standing beside the door. She began running and then decided to return to the pharmacy to see if anyone was injured. She saw Chilton exit the pharmacy just as she was entering it. Ms. Rudolph testified that she never saw appellant. Springdale Police Officer Gene Polsinelli testified that he heard the radio call for the robbery. Prior to the call, he had passed the pharmacy in his police cruiser and noticed a large brown sedan in the area. The car was parked about a block from the pharmacy. The officer’s suspicions were aroused since Springdale is a small town and since the men in the car, which was a luxury sedan, looked “the criminal type” to the officer. Id. at 44. The officer did not state the precise number of people viewed in the car; he said only that there were “several guys.” Id. Officer Polsinelli could not identify any of the occupants of the vehicle. At the time, Officer Polsinelli thought that the state store may be a robbery target since the car was parked closer to it than the pharmacy. He turned his cruiser around and looked into the state store. When everything appeared normal, he left. As he was headed away from the state store, the police broadcast concerning the robbery was transmitted. Chilton, Rometo, and appellant were apprehended by Tarentum police twenty to twenty-five minutes following the robbery in a white and brown Lincoln Continental. Appellant was driving. Tarentum Borough Police Officer Joseph T. Naviglia searched appellant and found four Tylenol with codeine pills in his pocket. Following the close of the Commonwealth’s case, appellant demurred to the evidence. He did not present a defense, but Chilton and Rometo both testified in Rometo’s defense. Chilton said that he was a drug addict at the time of the robbery and that Tallarico often sold him narcotic drugs at a significant profit without a prescription. Chilton *270 went to the pharmacy on March 26th hoping to find Tallarico. When he was not there, Chilton, on his own, decided to rob the store of drugs. He stated specifically that he had not discussed taking the drugs by force with Rometo prior to entering the store but that they planned on buying drugs from Tallarico. Chilton also testified that he did not know appellant prior to the day of the robbery and that appellant was picked up hitchhiking just after the robbery. Chilton also testified that he allowed appellant to drive the car because Chilton was intoxicated and appellant was not. Rometo’s testimony was consistent. The test applied in reviewing whether a demurrer should have been granted is to accept the Commonwealth’s evidence, together with all reasonable inferences from that evidence, and to determine whether it is sufficient to support a finding of guilt beyond a reasonable doubt by the factfinder. Commonwealth v. Turner, 491 Pa. 620 , 421 A.2d 1057 (1980). The evidence establishes that Chilton, not appellant, committed the robbery. In order to establish appellant’s guilt, the Commonwealth was required to prove that appellant was either an accomplice or co-conspirator of Chilton in the commission of the robbery. Commonwealth v. Brady, 385 Pa.Super. 279 , 560 A.2d 802 (1989). An accomplice is one who knowingly and voluntarily promotes or facilitates the commission of an offense and agrees or aids or attempts to aid such other person in planning or committing the offense. Commonwealth v. Potts, 388 Pa.Super. 593 , 566 A.2d 287 (1989), petition for allowance of appeal granted, 525 Pa. 656 , 582 A.2d 322 (1990). A conspiracy requires an agreement to engage in a criminal act. Commonwealth v. Brady, supra. Accepting the Commonwealth evidence as true and all reasonable inferences therefrom, I believe that the evidence was not sufficient to overcome appellant’s demurrer on the robbery charge. Even rejecting the testimony of Chilton and Rome-to that appellant was picked up hitchhiking following the robbery, there was nothing in the record to establish appellant’s knowledge that a robbery occurred. Furthermore, *271 disbelief of contrary evidence cannot substitute for proof, Commonwealth v. Scott, 409 Pa.Super. 313, 320 , 597 A.2d 1220 (1991), and I believe that the Commonwealth’s evidence was insufficient to establish that appellant knew about Chilton’s robbery of the store — either before or after it occurred. First, the Commonwealth evidence establishes conclusively that appellant was never near the pharmacy and never viewed Chilton’s actions. Ms. Molnar, Ms. Kirin, and Ms. Rudolph all testified that they did not see appellant at or around the crime scene. Furthermore, these three witnesses, at various times, viewed the entire vicinity of the pharmacy during and immediately after the robbery. They all stated positively that they did not see appellant. Although the Commonwealth suggests Officer Polsinelli’s testimony established appellant’s presence at the scene, I strongly disagree. Officer Polsinelli never identified appellant as one of the car occupants, and he never stated how many men he saw. Furthermore, given where the car was located, even if appellant was in the car during the robbery, he could not have viewed the inside of the pharmacy, where the robbery occurred. Equally significant is the fact that this robbery did not involve a weapon of any sort. Neither Chilton nor Rometo nor appellant possessed a weapon when arrested, and Chilton never displayed a weapon during the robbery. These two facts, viz, that appellant did not see Chilton rob the pharmacy and that the robbery was not committed with a weapon, are the keys that distinguish this case from the cases relied upon by the Commonwealth. In Commonwealth v. Perry, 334 Pa.Super. 495 , 483 A.2d 561 (1984), and Commonwealth v. Esposito, 236 Pa.Super. 127 , 344 A.2d 655 (1975), the actor committed the robberies with a visible firearm. Thus, conspiracy or accomplice liability could be inferred from the fact that the non-actor must have known that the actor was going to rob the particular establishment due to the actor’s possession of a visible weapon. Similarly, in Commonwealth v. Ross, 248 Pa.Super. 312 , 375 A.2d 113 *272 (1977), the accomplice actively participated in the robbery with the actor by entering the establishment with that person and distracting the victim’s attention while the actor stole the money. In this case, appellant’s conviction rests solely on the following pieces of evidence: he was driving the car twenty to twenty-five minutes after the incident, he had four Tylenol with codeine tablets in his pocket for which he had no prescription, and he gave false identification. This evidence, however, must be viewed in light of the fact that the Commonwealth evidence establishes that the robbery was committed by Chilton’s “pushing” the employee to the ground. There was no evidence that possibly could establish that appellant knew that Chilton had robbed the store. Furthermore, Rometo’s evidence supports the conclusion that appellant did not know that the store was robbed. Both Chilton and Rometo stated that they regularly purchased controlled substances from the owner of the pharmacy and went into the pharmacy on that day planning to purchase drugs illegally. Not only did the Commonwealth fail to rebut this evidence, the testimony of two of its witnesses, Ms. Kirin and Ms. Molnar, supports it. Both Ms. Kirin and Ms. Molnar testified that Chilton requested the owner by name prior to engaging in his bizarre conduct. While reasonable inferences must be drawn in the Commonwealth’s favor, the inferences must flow from facts and circumstances proven in the record, and must be 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. Commonwealth v. Clinton, 391 Pa.212, 219, 137 A.2d 463, 466 (1958). The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fall even under the limited scrutiny of appellate review. Commonwealth v. Roscioli, 454 Pa. 59, 62 , 309 A.2d 396, 398 (1973); Commonwealth v. Garrett, 423 Pa. 8 , 222 A.2d 902 (1966). *273 Commonwealth v. Scott, supra, 409 Pa.Super. at 315 , 597 A.2d at 1221 . I believe that given the manner in which the store was robbed and given the fact that the evidence establishes conclusively that appellant did not view the robbery, appellant’s mere presence in the car after this incident, even with the pills in his pocket, was not sufficient to establish that he either conspired or agreed to aid Chilton in robbing the store, before or after the fact. The evidence establishes only his guilt in possessing an illegal substance — which explains why he gave police false identification. The inferences from this evidence do not establish appellant’s guilt beyond a reasonable doubt, and I believe the disposition of this case is controlled by Commonwealth v. Brady, supra, where we held that a defendant’s mere presence at the scene of a burglary and apprehension in the car where the burglary proceeds were located were not sufficient to sustain a conviction for burglary, even though the defendant had viewed the burglary. Accordingly, I respectfully dissent --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756864. Public record. Not legal advice.