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COMMONWEALTH v. BALLOW (07/17/52)

July 17, 1952

COMMONWEALTH
v.
BALLOW



COUNSEL

James L. Stern, Philadelphia, for appellant.

Michael Von Moschzisker, First Asst. Dist. Atty., Malcolm Berkowitz, Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, for appellee.

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

Author: Ross

[ 171 Pa. Super. Page 56]

ROSS, Judge.

This is an appeal by George Ballow from judgment of sentence imposed after the refusal of a new trial following a conviction by a jury on a bill of indictment containing five counts charging assault with intent to rob and robbery of Martin Barlly and Albert Godfrey. Morris Berkowitz and Oliver Krantz were also indicted for the same offenses but they entered pleas of guilty and testified for the Commonwealth against Ballow. The appellant questions (1) the sufficiency of the evidence to sustain the jury's verdict and (2) the action of the trial judge in allowing an amendment of the indictment.

Barlly and Godfrey lived together in an apartment on the second floor of a building located at the corner of Ninth and Locust Streets in Philadelphia. The two men were associated in a jewelry business conducted at another location. On March 27, 1951, Godfrey received a telephone call from a man who identified himself as 'Weiner', a person known to Godfrey, who told him that he 'wanted to get a ring' and that he wanted to pick up the ring at the apartment. At 8:30 p.m. that night, Barlly was alone in the apartment he shared with Godfrey. Barlly testified that Godfrey had told him to expect 'a couple of customers' who wanted to purchase diamonds. The bell in the apartment rang and Barlly admitted Krantz and Berkowitz, thinking them the customers Godfrey had mentioned. Berkowitz and Krantz with a gun forced Barlly to lie face down on the floor, went through his pockets and 'took everything'. At about this time Godfrey, who had been on the third floor, came upon the scene and Berkowitz and Krantz fled. Berkowitz was arrested immediately near the scene of the crime. Berkowiz implicated Krantz, who was arrested, and both men implicated Ballow, who was arrested in Baltimore some time after the robbery.

[ 171 Pa. Super. Page 57]

Both of the appellant's alleged accomplices gave testimony against him. Krantz testified that he had met appellant, whom he had known for two years, in Wilmington, Delaware, 'about the 21st or 22nd of March' 1951. At that meeting Ballow told Krantz, 'I have a good thing for you, and it is easy.' The 'good thing' was 'a fellow' who lived alone on the second floor at Ninth and Locust Streets in Philadelphia and 'carries thirty or forty thousand dollars of diamonds'. Ballow told Krantz that he would 'use someone else's name' and make an appointment with the proposed victim so that Krantz and another man could more easily gain access to the jewelers' apartment.

Krantz contacted Berkowitz to inform him of the proposed hold-up and, some time between March 22 and March 27, the three conspirators met in Philadelphia to make further plans, and Ballow showed his accomplices the Barlly-Godfrey apartment. On the 27th of March Ballow, Berkowitz and Krantz were together in Krantz' car. Ballow got out of the car at Ninth and Spruce Streets and the other two men went to Locust Street between Eighth and Ninth, where they parked the car. Thereafter Berkowitz and Krantz went to the jewelers' apartment and committed the robbery. The appellant was the only witness for the defense. He admitted knowing Berkowitz and Krantz but stated that he had not seen either of them since January 1951.

The appellant's argument that the evidence was not sufficient to sustain the conviction merits little discussion. It amounts to a contention that the evidence to corroborate the testimony of appellant's alleged accomplices was weak. Counsel for the appellant concedes that the trial judge correctly and fully instructed the jury with respect to the careful and critical scrutiny to be given the testimony of an accomplice. In the case at bar, there was evidence to corroborate, within practicable limits, the testimony of Berkowitz

[ 171 Pa. Super. Page 58]

    and Krantz. Moreover, the uncorroborated testimony of an accomplice or of accomplices may of itself be sufficient to justify a conviction. Com. v. Bubna, 357 Pa. 51, 67, 53 A.2d 104; Com. v. Cunningham, 161 Pa. Super. 276, 53 ...


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