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COMMONWEALTH v. FARLEY. COMMONWEALTH V. BAKEY (01/12/51)

January 12, 1951

COMMONWEALTH
v.
FARLEY. COMMONWEALTH V. BAKEY



COUNSEL

John J. Gilbride, Jr., Francis Shunk Brown, 3rd and Lemuel B. Schofield, Philadelphia, for appellants.

Colbert C. McClain, Asst. Dist. Atty., John H. Maurer, Dist. Atty., Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 168 Pa. Super. Page 205]

RHODES, President Judge.

Defendants, Augustus Farley and William Bakey, have appealed from convictions and sentences on charges of burglary and armed robbery. The jury's verdict established that the two defendants, with an unidentified

[ 168 Pa. Super. Page 206]

    confederate, entered the West Philadelphia branch of Abbotts Dairies, Inc., located at 3416 Lancaster Avenue, Philadelphia, at 7:30 on the evening of December 20, 1949, held up three employes who were present at the time, and escaped with approximately $40,000; $24,000 being in cash and the remainder in checks.

Defendants were found guilty by a jury, at a joint trial, on four bills of indictment: (1) Conspiracy to assault with intent to rob, etc.; (2) burglary; (3) armed robbery; (4) carrying concealed deadly weapon and unlawfully carrying firearms without a license. The court sentenced each defendant to consecutive terms of not less than ten years nor more than twenty years in the Eastern State Penitentiary on the burglary and armed robbery convictions. Although defendants have taken separate appeals from each sentence, the questions raised can be disposed of in this opinion. Defendants do not question the sufficiency of the Commonwealth's evidence to support the convictions. The two questions presented are confined to: (1) the charge of the court on the subject of identification, and (2) the cross-examination of Bakey as to details of prior convictions.

On the evidence presented by the Commonwealth against both defendants, the verdicts of the jury were entirely justified. The three bandits, wearing silk scarfs or bandanas, suddenly faced the employes in the second-floor offices of Abbotts Dairies, Inc., at 3416 Lancaster Avenue, and with drawn revolvers ordered the three employes to put up their hands. The three employes, Randolph Richman, John F. O'Brien, and William Molyneux, were then forced to lie on the floor. The robbers proceeded to take bags of money from the safe and place them in a container. While on the floor near the cashier's cage, Richman was able to see two

[ 168 Pa. Super. Page 207]

    of the robbers when they were without masks. He positively identified Bakey by appearance and by voice. Bakey called out 'Merry Christmas' as the robbers were leaving. Richman also identified Farley as the short stocky robber who watched the three victims while his confederates were gathering up the money. The offices and the cashier's cage where the drivers of the dairy company turned in their receipts were well lighted by modern fluorescent fixtures which enabled the witnesses to observe the robbers closely. One of the employes, O'Brien, identified Bakey as the tall robber who announced the 'stick-up' and who ordered O'Brien 'to get my hands up and go across the room and get down on the floor.'

Commonwealth's witness, George Lewis, testified that he observed two men acting suspiciously on Meeting House Lane, near 54th Street, Philadelphia, about 8:30 on the evening of the robbery. Lewis saw the two men remove some papers from a parked car and burn them in an adjoining lot; he also heard a sound like money being dumped on the floor of the car. Lewis reported what he heard and saw to the police who went to the scene and discovered the partially burned checks and a driver's return sheet bearing the name of Abbotts Dairies, Inc. Lewis, who had been within a few feet of the two men, later identified Bakey as the taller of the two who had been engaged in burning the papers. The scene of the burning was only a few blocks from Farley's apartment. The witness Richman selected Bakey's photograph from ten submitted to him by the police. He volunteered the remark that Bakey looked younger in the photograph ...


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