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COMMONWEALTH v. MILLER ET AL. (06/11/64)

June 11, 1964

COMMONWEALTH, APPELLANT,
v.
MILLER ET AL., APPELLANTS.



Appeals, Nos. 61 to 68, inclusive, 108 and 109, Oct. T., 1964, from judgments of Court of Quarter Sessions of Berks County, Dec. T., 1962, Nos. 223 and 223A, in cases of Commonwealth of Pennsylvania v. John Miller et al.; and Same v. Frank S. Townsend, Jr. Appeals by defendants sustained; appeals by Commonwealth dismissed.

COUNSEL

Lawrence Goldberg, with him Samuel R. Liever, for defendants.

W. Richard Eshelman, District Attorney, with him Ralph J. Althouse, Assistant District Attorney, for Commonwealth.

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

Author: Montgomery

[ 203 Pa. Super. Page 514]

OPINION BY MONTGOMERY, J.

The defendants were tried jointly before a jury and found guilty on two indictments charging (1) conspiracy to commit robbery and robbery by assault and force; and (2) kidnapping for extortion. Thereafter the lower court granted a motion in arrest of judgment filed by Frank S. Townsend, Jr., which is the basis of the appeal by the Commonwealth, and refused motions for a new trial and in arrest of judgment filed by the other defendants. These appeals by John Miller, Robert J. Sykes, and James R. Porter alias John McDonough, and Frank S. Townsend, Sr. (now deceased), are from the refusal of their motions and the judgments or sentence.

A resume of the facts out of which the charges arose follows. On September 15, 1962, about 10:00 a.m., Frank Donato, now deceased, while walking with his dog on a street in the City of Reading was accosted, roughly searched, handcuffed, and placed in a station wagon by four men whom he could not identify. A fifth man remained in the station wagon. A cloth was placed around Donato's throat, and inquiry was made of him in a threatening manner about $30,000, and something metallic was placed against his head. At this time some mention was made by the man asking the question about the books Donato left in his room, which Donato later admitted were there. Eventually Donato was let out in the hills near the Borough of Sinking Spring, where the handcuffs were removed and he was tied to a tree, a T-shirt that he had been wearing was put around his head, and $54 in currency and his keys were removed from his person. He remained in this position until he was able to extricate himself, following which he reached a phone and called the police.

Upon the arrival of the police Donato accompanied them to Sinking Spring, where they came upon a station

[ 203 Pa. Super. Page 515]

    wagon in which were two men, Frank S. Townsend, Sr. and Robert J. Sykes, whom he later identified at a preliminary hearing following their arrest as two of the five men who had accosted him previously.

When Donato was first observed by the police officer who had responded to his call he was holding some twine. The officer later found twine in the station wagon.

Other events of the evening were as follows: About 11:00 p.m. Jennie Donato, a spinster sister of Frank Donato, was in the living room of the home occupied by her and her brother at 29 South Second Street. She heard someone at the front door, opened it, and found two men there. One of these men wore a glove and, holding up some keys, said, "Frank said you should give me the money ... that the Federal men found here," and "Well, you see we have his keys and if you don't want anything to happen to him you better give us the money." While they were talking the police arrived and the two men, identified as James R. Porter alias John McDonough, and John Miller were taken into custody. Porter broke away and ran down the street but was promptly apprehended. It was porter who had done most of the talking to Miss Donato. One of the two men said to the police officer, "May I go down and turn my car off? I left it running." While taking Porter and Miller to the police station in the patrol wagon they came upon a ...


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