# Commonwealth v. Septak

> Supreme Court of Pennsylvania · December 12, 1986 · 359 Pa. Super. 375

URL: https://www.frixlaw.com/law-library/cases/9759029

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Michael SEPTAK, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 12, 1986
- **Citations:** 359 Pa. Super. 375; 518 A.2d 1284; 1986 Pa. Super. LEXIS 13147
- **Precedential status:** Published
- **Opinion:** Concurrence by Popovich
- **Judges:** Cavanaugh, Popovich, Montgomery
- **Cited by:** 20 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.
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## Opinion text

POPOVICH, Judge,
concurring:
I join the lead opinion, but postulate the following scenario in response to the position espoused in the dissenting opinion:
What if the defendant became involved in a conspiracy after his cohorts had killed the kidnapped victim, would the defendant be liable (as an accessory after the fact) for the acts of his co-conspirators and be exposed to the weapon enhancement provisions of the Sentencing Code?
Supposedly, under the dissent’s rationale, the fact that the defendant was not aware of or present during the use of the weapon on the victim should render him immune from the effects of the weapon enhancement statute. With this I cannot agree. See Commonwealth v. Rodgers, 187 Pa.Super. 471 , 144 A.2d 662 (1958).
Under settled law embracing the area of conspiratorial accountability, the occurrence of a killing during the commission of, e.g., a robbery by a group of felons would expose each to a sentence commensurate with a felony-murder (second degree murder). See Commonwealth v. Tate, 485 Pa. 180 , 401 A.2d 353 (1979).
The defendant could not plead ignorance to the use of a weapon by his cohorts, and seek asylum in the fact that his involvement was conditional upon the effectuation of the crime without the use of a weapon. See Commonwealth v. Thomas, 410 Pa. 160 , 189 A.2d 255 (1963). This type of logic strains reality and runs head-on into the precept that each conspirator is responsible for everything done by his confederates, provided, of course, that it is in furtherance of the conspiracy. See, e.g., Commonwealth v. Riley, 330 Pa.Super. 201 , 479 A.2d 509 (1984); Commonwealth v. Rhey, 140 Pa.Super. 340 , 14 A.2d 192 (1940).
*385 Also, 42 Pa.C.S. § 9721 does not make specific reference to the defendant having to be charged with the use or possession of a weapon during the commission of the crimes for which he is being sentenced. See Commonwealth v. Bell, 512 Pa. 334, 342-344 , 516 A.2d 1172, 1177 (4986). If such were the case, there would be no need to have the term “accomplice” in the section unless the intent of the Legislature was to hold the defendant responsible for his confederates’ actions. Stated differently, the intent of the section, as I read it, is to punish one not only for his possession of a weapon, but for the possession of a weapon by an accomplice out of which the crimes being charged flow. See 18 Pa.C.S. §§ 306, 903. Thus, although a defendant may not have been a principal when it comes to the use of a weapon, the fact remains that a weapon was used at bar upon the victim by a member of the conspiracy team. As a result, this conspiratorial web exposes all members of the cadre to liability for the act of the other, regardless of when it occurred so long as the act was in furtherance of the conspiracy. Tate, supra. On this, we are presented no evidence to reach a contrary conclusion.
Here, as recounted by the dissent, the victim was harassed with a weapon by one of defendant’s co-conspirators. Accordingly, I see no reason not to hold the defendant accountable (through means of the weapon enhancement statute) for conduct engaged in by a member of the conspiracy.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759029. Public record. Not legal advice.