dissenting.
“Conspiracy is defined as ‘an agreement between two or more persons by some concerted action to commit an offense.’ ” Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). “There can be no conspiracy without an agreement, and the Commonwealth must prove beyond a reasonable doubt that an agreement existed.” Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978) (citations omitted). This record is devoid of sufficient evidence to establish that an agreement existed between James Smith and Joseph Brown with respect to the heroin that was seized in Gilbert Gray’s automobile.
When the evidence is viewed in the light most favorable to the Commonwealth, as we are required to do following a conviction, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the evidence establishes that on April 15, the defendant, Joseph Brown, was seen at a motel in Maryland. A clone of James Smith’s beeper was activated five times and *82showed the telephone number of a public telephone at the motel. The police surveillance indicated that the calls were followed by the numbers “00,” which is a code that the police attributed to the defendant, Joseph Brown. Shortly thereafter, Brown was observed entering a nearby restaurant where he took a seat with Gilbert Gray. Gray, who testified as a witness for the Commonwealth, stated that he contacted Brown directly and met with Brown at the restaurant because he was attempting to purchase heroin. Gray gave Brown $500 and asked Brown to buy heroin for him. During the time Brown was in the restaurant, the clone of Smith’s beeper again was activated, with the return number being a public telephone in the restaurant, and with the code the officers attributed to Brown. Shortly thereafter, Brown left the restaurant and returned to the motel.
Gray testified that Brown had not obtained the heroin for him when, on April 16, Gray agreed to deliver a package to Richmond, Virginia for Brown. Gray left his home in Virginia on April 16 with his neighbor, George Wright, who went along “for a leisure ride.” Gray testified that Brown called him at home and arranged to meet him in Maryland. Gray and Wright went to a location on Iverson Street in Maryland. After parking the car, Gray went to a building but got no response. Later, a blue Volvo driven by Brown joined them. Gray got in the Volvo. Wright then drove Gray’s Oldsmobile to Washington, following Brown and Gray who were in the Volvo. When they arrived at a parking lot in Washington, Brown told Wright to get into the Volvo. Brown then drove off alone in Gray’s Oldsmobile.
Brown was next seen by the police surveillance at a public telephone in front of a restaurant. The police noted a call on the clone of Smith’s beeper showing the number of that public telephone followed by “00.” After talking on the telephone, Brown entered the restaurant. Brown was seen emerging from the restaurant with a bag in his hand. After using the telephone again, he sat in the Oldsmobile.
After waiting a long while, Wright testified that he and Gray drove around the block and saw Brown sitting in the Oldsmobile. Gray and Wright then returned to the lot and waited. Brown returned to the lot, stayed a few seconds, and again left. Brown drove to another location. When the police next saw the Oldsmobile, Smith was sitting in the Oldsmobile with Brown. The police *83officer who spotted the Oldsmobile testified that Smith was “seated in the passenger’s side of the car, somewhat leaning down inside the car.” Smith then left the Oldsmobile.
Ten minutes after Brown left Gray and Wright, Brown returned and asked Gray and Wright to follow him to the Wingate Apartments. At the Wingate Apartments, Gray left Wright in the Volvo, went to his Oldsmobile, and talked with Brown. At that time, Brown had a package; however, Gray testified that it was not the heroin he had sought to obtain. Brown “told [Gray] he would be able to get what [Gray] wanted, but he couldn’t get it where he just came from and he had to go somewhere else to get it.” Gray testified that on two occasions Brown went to places in an attempt to purchase heroin for him but was unsuccessful.
Gray agreed to deliver Brown’s package to Virginia. Brown told Gray to “drive south” and stated that he was “going to get what you want.” Brown told Gray, “I should be five or ten minutes behind you. I’ll probably catch you on the highway, but if I don’t catch you, meet me at the Hardees on Chamberlayne Avenue because I gotta go to Richmond anyway.” Brown told Gray that he would take Wright home.
Gray drove off as soon as Brown got out of the Oldsmobile. According to Wright, Brown got in the Volvo and stated that he would take Wright home. Wright testified that he told Brown that he “was riding with [Gray] and I prefer him to drop me off.” Brown then drove away and spotted Gray as he was crossing the bridge into Virginia. Both vehicles stopped at a service station. Wright got into Gray’s Oldsmobile and the two of them proceeded toward Richmond. On the way to Richmond, Gray told Wright that he was transporting a package of heroin for Brown. As they drove south, Gray opened the package, which was under the armrest between the two front seats. He and Wright then used some of the heroin and later stopped at a drug store to buy tape to reseal the package.
On this evidence, the Commonwealth has failed to prove beyond a reasonable doubt that Smith agreed with Brown to commit an offense. Only by speculating is the majority able to conclude that Smith had any connection with Brown’s scheme to transport heroin. “[Suspicion is never enough to sustain a conviction.” Simmons v. Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, *84573 (1968).
Circumstantial evidence establishes Brown and Smith contacted each other through a series of beeper communications; however, that does not prove that Smith’s relationship with Brown was based on narcotics. Contrary to the majority’s assertion, there is no evidence (i) that Gray intended that Brown contact Smith to arrange a purchase of drugs or (ii) that Brown contacted Smith concerning a purchase of drugs. The majority speculates that, because Smith was seen on one occasion in the Oldsmobile “reaching down to the floor,” he must have placed the heroin in the car. That speculation is untenable. Brown was observed leaving a restaurant with a bag. He went to the Oldsmobile with the bag and drove the Oldsmobile to an unknown location and at a time when he was not under observation. Smith was only seen in the Oldsmobile at a later occasion — after Brown entered the car with the bag.
The majority opinion states that Smith was seen “reaching down to the floor” and, apparently, assumes that this action was suggestive of criminal conduct. The record, however, belies this apparent inference. Smith was not seen carrying anything to the car. Moreover, Wright, who was in the Oldsmobile as it headed to Virginia, stated that the package of heroin was “sort of wrapped up in a bag at first.” Wright said that when he got in the Oldsmobile the bag was located on the front seat “between the seat and the armrest.” Wright testified that he could “see that bag without too much trouble.” When the evidence shows that Brown was seen with a bag entering the unoccupied Oldsmobile and that the heroin was on the seat under an armrest when Gray left Washington, the inference that Smith brought the heroin to the car is simply untenable. If the package was found under the front seat when Gray was stopped by the police in Hanover County, it follows from the evidence that it was placed there by Gray or Wright after they pilfered from the package.
The evidence proves beyond a reasonable doubt that Brown asked Gray to transport the heroin from Washington to Richmond and that Gray did so. Brown gave the package to Gray in Washington for delivery to Richmond and Brown was to meet Gray in Richmond to accept delivery of the package. Each, therefore, on this evidence, participated in a distribution of heroin. The distribution statute proscribes the broad range of “delivery or *85transfer, actual or constructive, of possession or title to such drugs from one person to another.'1'’ Wood v. Commonwealth, 214 Va. 97, 99, 197 S.E.2d 200, 202 (1973) (emphasis added). However, I believe that Wharton’s Rule prohibits a prosecution for conspiracy to distribute heroin when the evidence establishes that only two actors are involved in the agreement.
In reaffirming the validity of Wharton’s Rule in Virginia, the Supreme Court observed:
The doctrine has been stated as follows:
When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained. The reason for the rule rests on the nature of the crime of conspiracy, which attempts to punish combination in crime which generates criminal activity “ ‘not confined to the substantive offense which is the immediate aim of the enterprise.’ ” The classic Wharton’s Rule offenses - crimes such as adultery, incest, bigamy, duelling - “are characterized by the general congruence of the agreement and the completed substantive offense” and, therefore, indictment for conspiracy to commit such crimes is deemed to be unsound. A recent edition of Professor Wharton’s text states, as an example of the Rule’s application, that there can be no conspiracy between a prostitute and a panderer.
* * * *
Under the “third-party exception” to the Rule a conspiracy charge may be brought where the agreement which is the basis for the conspiracy involved more participants than were necessary for the commission of the substantive offense. The rationale supporting this exception is that the addition of a third party enhances the dangers presented by the crime and thus invokes the policy concerns addressed by the law of conspiracy.
Stewart v. Commonwealth, 225 Va. 473, 478-80, 303 S.E.2d 877, 879-80 (1983) (citations omitted).
*86Wright was not a party to the agreement to distribute the heroin. The record reflects that charges were dismissed as to him. The Commonwealth, in fact, proceeded under the theory that Smith was the third party participant to the conspiracy. Because the evidence failed to prove that Smith or any other third party participated in the transaction, I would reverse the conspiracy conviction and dismiss the indictment.