Accomplice Liability in Pennsylvania

The recent case of Commonwealth v Toritto, provides a good chance to review ACCOMPLICE LIABILITY IN PENNSYLVANIA. In this case, Toritto was charged with conspiracy based on tangential evidence of involvement in a drug deal. The Commonwealth argued his liability was based upon either conspiracy or accomplice liability.  The jury found him not guilty of conspiracy, but found him guilty of the drug delivery based upon accomplice liability and the specific jury instructions the Commonwealth asked the judge to read to the jury during the trial.

The Commonwealth argued, and the jury found, that Toritto’s criminal liability was based upon allegations of being the driver not the main defendant or co-conspirator who allegedly committed the drug deal. He was the friend who drove himself and another to a drug deal partially aware that he was transporting drugs or money to the deal. Factually, the evidence was that after arriving at a bar and meeting the undercover officer in the bar together, Toritto gave the keys of his car to his co-defendant friend, allowing him to retrieve the narcotics from Toritto’s car. Furthermore, Toritto was intermittently present while the co-defendant discussed the transaction with the undercover agent, but did not participate directly in the transaction. After the drug deal Toritto and his friend were arrested as they left the bar.  The jury found him guilty and he was sentenced to 7-14 years in prison.

Another, more typical, example of accomplice liability is where a friend drives another to a bank for a withdraw and waits in the car. Unbeknownst to the driver, the friend in the bank is forging or kiting checks and committing bank fraud. (This is not a bank robbery with the driver sitting in the get-a-way car aware of the bank robbery taking place.) While there may not be enough facts to establish an actual conspiracy (two persons acting on concert to achieve a common purpose, scheme or design), in some counties, the District Attorney will charge the driver/friend with participating in the drug or bank fraud forgery case as an accomplice.

Toritto took his case to a jury trial, arguing that he had no idea of the drug deal in which his cousin was involved, was not an “associate” of the drug gang, and his “mere presence” at the scene of the crime was insufficient as a matter of law for a jury to find him guilty. He lost.  On Appeal Superior Court, sitting en banc, or with nine appellate judges not three, decided the case was important enough to review and present a clear statement of what is accomplice liability based upon mere presence. The court found held that the evidentiary proof necessary to establish accomplice liability “need not be substantial so long as [the evidence establishes that a defendant’s presence] was offered to the principal to assist him in committing or attempting to commit the crime.” Commonwealth v. Murphy, 577 Pa. 275, 286, 844 A.2d 1228, 1234 (2004).

Applying this standard, Superior Court held that the critical facts presented to the jury allowed it, a reasonable person, to draw the inference that Toritto intentionally aided his friend in the sale of narcotics, first by driving him to the bar, then by remaining with him during the conversations, and finally by giving him the keys to his car to retrieve the drugs. The court stated, “A defendant cannot be an accomplice simply based on evidence that he knew about the crime or was present at the scene. However, the circumstances change if there is additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did or attempted to do so.

The lesson in this case is very clear: The Courts are bending over backwards to send the message that any person who provides even minimal help to another in the commission of a crime, regardless of whether that person benefits from the criminal act, can and will be held accountable as an accomplice to the commission of the criminal act.  The penalty for this liability will be equal to actually committing the crime. The old saying, “In for a penny, in for a pound,” will be propounded by every prosecutor in every jury trial seeking to have a person held accountable for helping another accomplish a crime.

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