Commonwealth v. Flowers

Dissenting Opinion by

Spaeth, J.:

In deciding whether appellant was guilty as an accessory before the fact, both the lower court and the majority of this court have applied a “but — for” test. Thus the lower court said: “We ask whether without [appellant’s] introduction of Shiner to the undercover *595agents a crime would have been committed. The obvious answer to this is in the negative.” And this court says: “Without appellant’s actions the sale of the drug would not have been accomplished since it was he who knew that the officer desired to purchase the drugs and it was he who knew that Shiner had such a product for sale.” It is respectfully submitted that this is not the way to decide the case. The test to be applied is not one of causation but of agency, or partnership. An accessory before the fact is one who aids or abets in the perpetration of a felony. Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974); Commonwealth v. Finkelstein, 191 Pa. Superior Ct. 328, 156 A.2d 888 (1959). To aid or abet in the commission of a crime, one must be an “active partner in the intent to commit it.” Commonwealth v. Leach, supra at 451, 317 A.2d at 295. Commonwealth v. Strantz, 328 Pa. 33, 40, 195 A. 75 (1937). A “very slight and tenuous connection with the crime” is insufficient. Commonwealth v. Darnell, 179 Pa. Superior Ct. 461, 463, 116 A.2d 310, 311 (1955).

In considering whether the evidence was sufficient to prove that appellant was “an active partner” of Shiner’s, the most helpful case that I have found is United States v. Moses, 220 F. 2d 166 (3d Cir. 1955). There the defendant was convicted as a seller of narcotics under a federal statute providing that one who “aids, abets, counsels, commands, induces, or procures” the commission of an offense against the United States is guilty as a principal. The facts were virtually identical to the facts here, as appears from Judge Hastie’s statement of the case:

“Appellant, a single woman 26 years of age, is a drug addict. Two undercover federal narcotic agents had become unsuspected members of the wretched circle of addicts and their familiars in which appellant moved. On the afternoon in question these agents came uninvited to the apartment where appellant *596lived with her parents. They told her they wished to purchase some drugs and inquired whether she knew where such could be obtained. She replied that she did not have any, that one Cooper who was her supplier would be over in about a half hour and that she would be able to arrange for the agents to get some drugs from him, but that they might also be able to obtain drugs from another supplier named Mack. After waiting a while the agents asked her to call Mack because they were not sure whether Cooper would come or not. Appellant called Mack’s home but was not able to reach him. As the agents were about to leave Cooper arrived. Appellant introduced the agents to Cooper and told him that they wished to purchase drugs. Cooper inquired of her whether they were all right and, when she replied in the affirmative, asked how she knew. Her answer was that she had seen them ‘over on the avenue’ on other occasions. The agents then told Cooper the amount and type of drugs they desired and discussed the price with him. Appellant heard the conversation but took no part in it. The agents and Cooper left the house and separated. Some hours later that evening they reassembled at three different times and places. The money was paid at the second meeting and the drugs were delivered at the third meeting. Appellant was not present at any of these meetings which-occurred at places other than her home.
“There is no evidence that appellant’s relationship to Cooper’s illicit business was other than that of a customer. On the day in question she merely introduced the prospective buyers to Cooper and vouched for them, all at the buyers’ request, with the result that the principals accomplished a sale some hours later. On these facts the district court, sitting without a jury, found the defendant guilty as charged.” Id. at 167-68.

*597In analyzing the legal significance of these facts, the court collected various authorities to the effect that accessories before the fact must be “ ‘confederates’ or ‘intentional participants in a common design with a principal actor.’ ” Id. at 169. “. . . [E]mphasis on those facts which show collaboration and association is characteristic of judicial analysis in those cases where convictions of aiding and abetting have been sustained.” Id. (collecting cases). (This statement of the law, it will be observed, is in accord with the decisions of our Supreme Court and of this court, cited above.) The court then held that there was an “absence of any showing of collaboration or association,” and therefore reversed the conviction. The court explained this holding as follows:

“The government has chosen to indict Marie Moses for her connection with the crime of selling rather than for any connection with buying. The conviction must stand, if at all, on her relation to the seller and his illicit enterprise. Any relation to the buyer actually militates against conviction of the charged offense of criminal complicity in selling.
“The undisputed facts show the appellant acting solely at the behest of the prospective buyers and in their interest. At the buyers’ request she did two things to facilitate their purchase. She introduced them to the seller and she vouched for their bona fides, if purchasers of contraband drugs can be so characterized. That is all that was proved. There was nothing to show that she was associated in any way with the enterprise of the seller or that she had any personal or financial interest in bringing trade to him. Although appellant’s conduct was prefatory to the sale, it was not collaborative with the seller. For this reason the conviction cannot be sustained.” Id. at 168.

I find no distinction between Moses and this case. There, as here, “[t]he government has chosen to indict *598. . . for [the defendant’s] connection with the crime of selling rather than for any connection with buying.” However, there, as here, “[t]here was nothing to show that [the defendant] was associated in any way with the enterprise of the seller . . . .” The majority states that “[t]he entire group including the defendant, his female friend, her child, Shiner, and the two agents then proceeded to Shiner’s residence . . . .” They proceeded, however, in the agents’ car; and since Shiner was along, presumably he led the way to his residence; there is nothing to suggest that appellant did more than go along, as did his female friend and her child. In my judgment, this is not the “partnership,” or “collaboration,” or “association,” that must be shown to sustain a charge that the defendant acted as an accessory before the fact.

Cercone, J., joins in this opinion.