Appeals, Nos. 266, 267 and 268, Oct. T., 1956, from judgment of Court of Quarter Sessions of Philadelphia County, Dec. T., 1955, Nos. 68, 69 and 70, in case of Commonwealth of Pennsylvania v. Theodore Fosco. Judgment affirmed.
William Cohen, for appellant.
Thomas M. Reed, Assistant District Attorney, with him Thomas Shiomos, and Jerome B. Apfel, Assistant District Attorneys, James N. Lafferty, Deputy District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 327]
Theodore Fosco and George Sundermeir were indicted for together feloniously assaulting Harry Mertz with intent to rob, for assault and battery, and for conspiring to rob.*fn1 They were tried separately. Sundermeir was acquitted of the charges of assault and battery and conspiracy and pleaded guilty to robbery. Fosco, the appellant in this case, was tried twice, the jury disagreeing at the first trial. At the second trial he was convicted on all three charges and sentenced to the Philadelphia County prison for a term of two to ten years.
Fosco appealed to this Court after the court below refused his motions for a new trial and in arrest of judgment.
As the record shows only one sentence, which, because of the length of the term, could have been imposed only upon the indictment charging the felonious
[ 182 Pa. Super. Page 328]
assault with accomplice with intent to rob, it appears that the trial court ignored the convictions on the other two indictments, and we shall do likewise. We might observe in passing, however, that there is no doubt concerning the sufficiency of the evidence to sustain the conviction of assault and battery, but there may be merit to the contention that the conspiracy conviction should be set aside because Sundermeir, the only other alleged co-conspirator, was acquitted in another trial on that charge. Com. v. Avrach, 110 Pa. Superior Ct. 438, 442, 443, 168 A. 531 (1933); Com. v. Bruno, 324 Pa. 236, 248, 188 A. 320 (1936).
The important question for our consideration is whether there was sufficient evidence from which the jury could find an intent to rob.
The evidence shows that the victim came out of a taproom about two o'clock in the morning and walked approximately fifty feet to his car which was parked on Lehigh Avenue in Philadelphia. Before the victim got into his car, Fosco and Sundermeir ran across the avenue and started to beat him, hitting him in the face and on the body and also kicking him. Two police officers saw the defendant and Sundermeir run across the street and beat the victim. When they approached and flashed their lights on the scene, ...