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COMMONWEALTH v. TYSON (03/22/61)

March 22, 1961

COMMONWEALTH
v.
TYSON, APPELLANT.



Appeal No. 21, Oct. T., 1961, from judgment of Court of Oyer and Terminer and General Jail Delivery of Northumberland County, Sept. T., 1959, No. 1, in case of Commonwealth of Pennsylvania v. John Calvin Tyson. Judgment affirmed.

COUNSEL

John Calvin Tyson, appellant, in propria persona.

Sanford S. Marateck, Assistant District Attorney, and M. F. Bonno, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Montgomery

[ 194 Pa. Super. Page 595]

OPINION BY MONTGOMERY, J.

This is an appeal from the refusal of motions in arrest of judgment and for a new trial.

Appellant, John Calvin Tyson, was tried and convicted, at No. 1 September Sessions, 1959, of the crime of robbery by assault and force. From the evidence produced it appeared that about 1:00 a.m. on July 4, 1959, appellant, in company of Leon Shelbert, met John G. Fisher of Brooklyn, New York, a former resident of the City of Shamokin, Northumberland County, who arrived in Shamokin the previous day for a visit. While Fisher was waiting for a taxi, appellant

[ 194 Pa. Super. Page 596]

    and Shelbert approached him and asked where he was going. Fisher stated that he was going to the picnic grounds at Bunker Hill and appellant and Shelbert replied that they, too, were going to the same place. When the cab arrived all three entered the cab and finally arrived at the picnic grounds. The three men drank some beer together after which Fisher decided to return to his hotel. When he was about fifty feet below the beer stand, at or near a clump of bushes, he looked back and saw appellant and Shelbert running toward him. One of them grabbed him and as he fell to the ground, one of them took about sixty dollars in bills and change from his pockets.

Appellant and his accomplice departed and Fisher walked back to th beer stand and stated that he had just been "rolled." He then went into the City of Shamokin and reported the occurrence to the police. He was turned over to the state police and was shown various photographs. Subsequently appellant and his accomplice were apprehended and lodged in the Northumberland County Prison. While in prison, appellant was placed in a police line-up and Fisher was asked whether the men who assaulted him were present. He immediately picked out appellant and also identified him later in the courtroom as being one of his assailants.

The jury found appellant guilty as charged. Thereafter, motions in arrest of judgment and for a new trial were filed and subsequently refused, and appellant was sentenced to a term of not less than four years nor more than eight years in the Eastern State Penitentiary.

On this appeal, several reasons are assigned as error in the refusal of the court below to grant his motions. The first contention is that new evidence has been discovered since the trial which would tend to ...


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