Appeal, No. 303, Oct. T., 1955, from judgment of Court of Oyer and Terminer and General Jail Delivery of Montgomery County, Sept. T., No. 27-1, 1954, in case of Commonwealth of Pennsylvania v. Mark P. Foley et al. Judgment affirmed.
Louis Lipschitz, with him Ernest E. Heim, for appellant.
L. Lyle Houpt, Assistant District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 179 Pa. Super. Page 544]
Mark P. Foley, Patrick J. O'Brien, Edmond J. Betts, Joseph M. Lightcap, and Anthony Bucci were indicted in Montgomery County on charges of feloniously assaulting Louis F. Hance, Jr. with intent to rob, a violation of section 705 of The Penal Code.*fn1
[ 179 Pa. Super. Page 545]
Betts pleaded guilty. The jury convicted Foley, O'Brien, and Bucci, and acquitted Lightcap. A motion in arrest of judgment was granted as to Bucci. The motions of Foley and O'Brien in arrest of judgment and for a new trial were refused, and they were committed to the Pennsylvania Industrial School. Foley has appealed.
The pertinent portions of the Commonwealth's evidence are summarized in the following excerpts from the opinion of Judge FORREST for the lower court:
"Louis F. Hance, Jr., age 27, lives about 2 1/2 miles from Lansdale; on September 13, 1954 upon leaving a movie in Lansdale, he went to Broad and Main Street where he solicited a ride from Betts and the defendants who were riding in a Ford convertible driven by O'Brien with Foley on his right in the front seat and Bucci, Betts and Lightcap in the back. Someone asked Hance where he was going. Hance replied and then Foley said, 'O.K., get in.' and stepped out. Hance sat between the driver and Foley. When they arrived at Lansdale Avenue, where Hance had said he wanted to get off, O'Brien stopped the car. Hance said, 'this is it', which was repeated by someone else. Someone in the back seat said, 'Hey, buddy, have you got any loot?' Hance replied, 'No.' O'Brien then said, 'look. We mean business.' Then Betts threw his arm around Hance's throat. Hance struggled to free himself. As he did so O'Brien reached for Hance's pockets. Hance tried to kick Foley, who was on his right, and these two somehow fell out on the sidewalk and began to slug one another. At about that time, someone shouted that the police were there. The car moved on and Foley took off, but reappeared from the rear of the police car which had stopped. He said to Hance, 'Look buddy, give me a break will you, just this once?' Hance refused and Foley ran off. Hance observed
[ 179 Pa. Super. Page 546]
that the Pennsylvania license tag of the car concluded with '00U'. After getting in the car Hance had been ill at ease because Foley stared at him continually. To ease the tension Hance said to Foley, 'why are you blushing?' ...