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COMMONWEALTH v. SHELBERT (06/15/61)

June 15, 1961

COMMONWEALTH
v.
SHELBERT, APPELLANT.



Appeal, No. 22, 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. Leon Shelbert. Judgment of sentence affirmed.

COUNSEL

Leon Shelbert, appellant, in propria persona.

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

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

Author: Rhodes

[ 195 Pa. Super. Page 210]

OPINION BY RHODES, P.J.

Defendant was found guilty by a jury on an indictment charging robbery by assault and force. Defendant's motions for new trial and in arrest of judgment were overruled, and the trial judge imposed a sentence of not less than four years nor more than eight years. On appeal to this Court, defendant Shelbert raised the

[ 195 Pa. Super. Page 211]

    question whether the Commonwealth's evidence as to identification of the defendant was sufficient to sustain the conviction.

The evidence produced at the trial discloses the following: The prosecutor, John G. Fisher, of Brooklyn, New York, a former resident of Shamokin, Pennsylvania, arrived in Shamokin on the evening of July 3, 1959, for a visit. Fisher spent the afternoon and evening of July 4th drinking in various bars in Shamokin. About one o'clock in the morning on July 5th, Fisher went to Independence Street, near Liberty, and waited for a taxicab to take him to a picnic being held at Bunker Hill, adjoining the eastern limits of Shamokin. Appellant and his co-defendant, John Calvin Tyson, who were strangers to Fisher, approached Fisher and inquired where he was going. Upon Fisher's informing them of his destination, appellant and Tyson replied they were also going to Bunker Hill. At the suggestion of the two defendants, all three of the men drove in a taxi to the picnic grounds. After Fisher paid the cab fare, they walked over to the picnic booths. Fisher bought some tickets at one stand, then walked over to another stand and bought a beer for himself and the two defendants.

Thereafter Fisher decided to return to Shamokin; he walked down the hill, looking for a path leading to the street below. Proceeding about fifty feet from the beer stand, and near a clump of bushes, Fisher looked back and observed the two defendants, Tyson and Shelbert, running toward him. One defendant grabbed the prosecutor and threw him to the ground; another took about $60 in bills and change from his pockets. Fisher testified that, after permitting him to get up, one of the defendants said to him, "Where is the fifty?" Fisher replied that he had no fifty. Fisher walked back to the beer stand, complained that he had just been "rolled," and then reported the matter to the police in Shamokin.

[ 195 Pa. Super. Page 212]

At the trial, Fisher definitely stated that Tyson and Shelbert were the men who assaulted and robbed him. At a police line-up, held before the trial, Fisher immediately identified the defendant Tyson, then picked a second man who was not the defendant Shelbert. According to Fisher's own testimony, on a second try at the police line-up, he picked out the defendant Shelbert as the other assailant. On the other hand, defendant produced witnesses whose testimony tended to show that Fisher did not identify Shelbert in the police line-up until the third attempt. In his charge the trial judge ...


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