Did an Assistant City Solicitor Commit a Crime When He Photographed His Friend Tagging a Fresh Grocer with Anti-Trump Graffiti?

If you’re hanging out with a buddy and your friend does something illegal while you’re there, are you on the hook for the crime? What if you knew or suspected that he was going to do it? Those are the questions likely facing Philadelphia prosecutors as they decide whether to bring charges in a case involving an Assistant City Solicitor who, according to the Philadelphia Inquirer, was videotaped “involved in an anti-Donald Trump vandalism incident.” 

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The video, which is available on the Inquirer’s website, shows the man “wearing a blue blazer and holding a glass of wine, filming or taking photos, while a second man spray paints ‘F--- Trump,’ on the wall of a newly opened Fresh Grocer.” That certainly isn’t good behavior for a city attorney. But given that he wasn’t the one with the spray paint, did he commit a crime by watching and taking photos? The answer to that question starts with an analysis of Conspiracy law. In other words, the question is whether the video provides the Commonwealth with enough evidence to bring a conspiracy charge.

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Most people have a general idea of what a conspiracy is, and on its face, it looks simple. Conspiracy is an agreement between two or more people to commit a crime. Conspiracy punishes not just the commission of the crime, but also the fact that the conspirators made the illegal agreement. Conspiracy is illegal because legislators have generally decided that people who plan crimes in advance with other people should be punished more harshly than people acting alone or who commit crimes impulsively. For this reason, conspiracy is a separate offense from the crime which the parties agreed to commit. Although conspiracy seems like a simple concept, in court, it is more complicated than it seems and can be very difficult for the prosecution to prove. The Pennsylvania Crimes Code defines conspiracy as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1)  agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2)  agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

In plain English, this means that a person commits a conspiracy when they agree to commit or try to commit a crime or when one person agrees to help the other person with planning or committing a crime. Additionally, the prosecution must show more than just the existence of an agreement. The Commonwealth also must show that one of the conspirators committed an overt act. The overt act requirement provides that “[n]o person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.” 

The overt act requirement ensures that people are criminally liable only when they take real steps towards committing the crime. It protects people who talk or joke about committing a crime but do not really mean it. For example, if you and I enter into an agreement to rob a bank, we have not committed a crime until one of us actually does something in furtherance of the agreement. However, it is important to remember that we do not both have to do something in furtherance of the conspiracy. If we make an agreement and one of us does something substantial in furtherance of the conspiracy, we have committed a crime. If we agree to rob the bank and you go buy the masks, we are now both on the hook for conspiracy even if I did not actually do anything other than agree with you that we would rob the bank. 

Conspiracy is a complicated and often difficult charge to prove because most of the time, unless they have a wiretap, cooperating witness, or undercover officer, the prosecution does not have evidence of the actual agreement. Instead, the prosecutor will produce testimony or other evidence describing the actions of both defendants during the incident and ask the judge or jury to infer that the defendants must have agreed to commit the crime together in advance. This is where the difficult questions arise; when one person commits the crime with another person present who does not do anything illegal, are they both on the hook? Without concrete evidence of a prior agreement, the answer is often no. 

The answer is often no because Pennsylvania law provides two important defenses to conspiracy: “Mere Presence” and “Mere Participation.” The mere presence doctrine establishes that the defendant’s presence at the scene of the crime or in the company of whoever committed the crime is insufficient to show participation in a conspiracy. This is true even where the defendant knew or suspected that the other person intended or planned to commit an unlawful act.

For example, if you and I are walking down the street, and I punch someone in the face while you stand there, the evidence would be insufficient to establish that there was a conspiracy because there was no evidence that you agreed to or encouraged the assault in some way. Although running from the police is almost never a good idea, this is true even if we both run when the police show up to make an arrest. Mere presence means that the prosecution must show that the defendant was part of the agreement, not just that he was there or that he knew about it.  

Mere participation is another important defense to a conspiracy charge. Mere participation is the idea that when a fight breaks out involving multiple people, the spontaneous eruption of the fight is not enough to show a conspiracy charge. Pennsylvania appellate courts have recognized that “the mere happening of a crime in which several people participate does not of itself establish a conspiracy among those people.” For example, people do not commit the offense of conspiracy “when they join into an affray spontaneously, rather than pursuant a common plan, agreement, or understanding.” That’s because conspiracy requires a prior agreement. It is not enough that a crime was committed by multiple people because if they all acted spontaneously, then it was not a conspiracy. Conspiracy is a complicated legal charge, and there are many potential defenses other than mere presence and mere participation. 

Now back to the original question – does the video show a conspiracy? When looking just at the video posted on the Inquirer’s website, it appears that the city lawyer did not commit the vandalism (which would likely be charged as criminal mischief) himself. Instead, he appears to have continued drinking his wine and taken some photos of the vandalism. Therefore, in order to convict him under a theory of conspiracy, the prosecution would have to show that there was some prior agreement to commit the crime or that based on the conduct in the video, the judge or jury should infer that there was a prior illegal agreement.  

Although he watched it happen and even photographed it, those actions may not be enough to show that he planned the vandalism or agreed with the painter to help with it. Simply being there and photographing it may have just been mere presence as explained above, and mere presence is not a crime. This, however, assumes that the two men have not confessed or given statements which indicate that they were both planning on doing it. Assuming that the video would be the only evidence introduced at trial, the judge or jury would not know whether the two men spoke about their plans beforehand and may very well find that there is insufficient evidence of a conspiracy. 

Of course, that is the criminal defense lawyer's perspective, and I still strongly advise my readers not to hang around when other people are committing crimes or possessing illegal contraband. The police and prosecutors may view it differently, and whether they feel there is enough evidence to bring charges is a different question from whether the judge or jury should find guilt beyond a reasonable doubt. The government could argue that there was a conspiracy: the two men appear to arrive together, it looks like they may speak to each other as they leave the scene, the act appears planned because the one man has brought a spray-can which he appears to attempt to conceal under his jacket as they approach, and the city solicitor takes photographs of the act, thereby egging him on and encouraging him to commit the vandalism. There are also other theories of criminal liability such as aiding and abetting which are equally complicated and which I will save for a future article. These decisions will ultimately be made by prosecutors and a judge or a jury, but whether the assistant solicitor committed a crime is not as simple as it initially may seem, and an experienced criminal defense attorney will recognize the available legal defenses even when there is a video of the incident which on its face may look incriminating. 

The key takeaway from this post is that criminal charges like conspiracy are complicated. They require a great deal of skill and expertise to identify the issues and raise the right legal and factual defenses. Many people would assume that the Assistant City Solicitor is guilty of vandalism, but as I have explained, there are several defenses which could be raised. The Philadelphia Criminal Defense Attorneys of Goldstein Mehta LLC have handled countless conspiracy cases with great success. We have won cases based on mere presence and mere participation arguments. We know that each case is different, and we always fight for the best possible outcome for each client. If you or a loved one are facing conspiracy or any other criminal charges in Philadelphia or the surrounding counties, call 267-225-2545 for a confidential, honest consultation.