Appeal, No. 217, Oct. T., 1954, from judgment of Courts of Oyer and Terminer and Quarter Sessions of Delaware County, Sept. T., 1953, Nos. 224, 225, and 226, in case of Commonwealth of Pennsylvania v. Orville Joseph Barclay. Judgment affirmed.
W. J. Woolston, for appellant.
Basil C. Clare, Assistant District Attorney, with him Raymond R. Start, District Attorney, and Joseph E. Pappano, First Assistant District Attorney, for appellee.
Before Rhodes, P.j., Ross, Gunther, Wright, and Woodside, JJ. (hirt and Ervin, JJ., absent).
[ 178 Pa. Super. Page 570]
Orville Joseph Barclay was tried in Delaware County on three bills of indictment, Nos. 224, 225, and 226 September Sessions 1953. The offenses charged were, respectively, violation of the Uniform Firearms Act, pointing a deadly weapon, and assault with intent to rob. A demurrer to the evidence was sustained as to bill 224. A verdict of guilty was returned as to bills 225 and 226. Motions for a new trial and in arrest of judgment were refused by the Court below. Sentence was imposed on bill 226, and this appeal followed.
The record discloses that the prosecuting witness, Louis Gray, conducted a check-cashing business in a small booth adjacent to the Pappas restaurant and near the Sun Shipyard in the City of Chester. On June 11, 1953, following his custom on days when he was to cash checks, Gray withdrew $30,000.00 from his bank, and locked the package containing this money in the trunk of his automobile. He parked the car opposite the Pappas restaurant, and went into the restaurant for a soft drink. After leaving the restaurant, Gray walked a short distance down the sidewalk beyond some steps on which appellant was seated, and then started to cross the street. When Gray was partly across the street, appellant approached and, according to Gray, "puts a gun right in my ribs and says 'Get in, get in the God damn car or I will kill you'". Instead of complying, Gray made an outcry
[ 178 Pa. Super. Page 571]
and ran back into the restaurant. Appellant started to follow Gray, but then turned and ran down the street, entered his own car, and drove away. Two witnesses for the Commonwealth heard the commotion, and saw appellant fleeing down the street. They were able to accurately describe appellant, and to obtain the license number of his car. These witnesses also observed that appellant kept his right hand in his pocket, his left hand swinging free at his side. Appellant was apprehended later on the same day. When the police officers examined his car they found in the trunk a loaded revolver wrapped in the jacket appellant had worn at the time of the assault. Gray did not discover that the package of money in the trunk was missing until an hour and twenty minutes after the police had been called. The Commonwealth offered no evidence that appellant took the money.
Appellant first told the police officers that he was not in Chester on the day in question. However, at the trial he admitted that he was at the scene of the crime and that he had made an assault upon Gray. He denied that the assault was made for the purpose of robbery, asserting that Gray had made a derogatory remark and spat at him. Appellant admitted that he had his right hand in his pocket when he was running from the scene, but explained that the sole content of the pocket was coins and keys. On this appeal he raises six questions which we will consider in order.
Conceding that there was evidence of an assault upon Gray, appellant contends that the testimony was insufficient to establish that the assault was with the intent to rob. He cites Commonwealth v. Kelley, 162 Pa. Superior Ct. 526, 58 A.2d 375, to the effect that preparation is not in itself indictable. He also cites Commonwealth v. ...