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COMMONWEALTH v. KOHNE (09/17/64)

decided: September 17, 1964.

COMMONWEALTH
v.
KOHNE, APPELLANT



Appeal from judgment of Court of Quarter Sessions and Oyer and Terminer of Allegheny County, April T., 1963, No. 79, in case of Commonwealth of Pennsylvania v. William P. Kohne.

COUNSEL

Charles J. Duffy, Jr., with him James A. Ashton, for appellant.

Louis Abromson, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, J.

Author: Ervin

[ 204 Pa. Super. Page 79]

The appellant, William P. Kohne, and Albert Zeid were charged with armed robbery, assault with intent to kill, and violation of the Uniform Firearms Act. The

[ 204 Pa. Super. Page 80]

    jury found both defendants not guilty of armed robbery and assault with intent to kill and returned a verdict of guilty as to William P. Kohne, the appellant, on the charge of violation of the Uniform Firearms Act. After overruling motions in arrest of judgment and for a new trial, sentence was imposed upon the appellant, William P. Kohne.

The evidence introduced by the Commonwealth was to the effect that at approximately 5:30 a.m. on January 6, 1963, two men entered the rear door of a saloon located in the Hill District of the City of Pittsburgh. Both of the men wore masks and one of them had a revolver in his hands. The owner of the cafe, Parker, opened the door in answer to the knock of a girl whom he had previously arranged to meet at this place. After Parker saw the men and after the demand had been made for money, he drew a gun and thereafter a battle ensued between Parker and the two men. Parker was unable to identify the two men by reason of the fact that they wore masks. Within 45 minutes after the shooting Zeid and Kohne appeared at the Citizens General Hospital in New Kensington, Westmoreland County. Zeid was seriously injured. Kohne was shot in the thigh. At the hospital a bullet fell from the clothing worn by Zeid and a ballistic expert testified that it had been fired from the gun used by Parker. At the conclusion of the Commonwealth's evidence the trial judge overruled demurrers interposed by both defendants.

The appellant, Kohne, now argues that his motion in arrest of judgment on the charge of violation of the Uniform Firearms Act should have been sustained for the reason that the Commonwealth's evidence failed to sufficiently identify him as having a gun in his possession at the time the shooting occurred. After the overruling of the demurrers Zeid did not take the stand but Kohne, the appellant, did. He admitted in his testimony

[ 204 Pa. Super. Page 81]

    that when he left his home that evening he took with him a loaded Luger pistol and that he did not have any permit to carry it. He also admitted that he carried it in the pocket of his topcoat and he further admitted that he threw the gun in the river from a bridge, knowing that there would be trouble when he reported the shooting to the police.

Counsel for the appellant, Kohne, frankly admits in his brief that "there is a long line of cases in both the Superior and the Supreme Court" which hold that when an appeal follows a judgment of sentence and the ruling on the demurrer is questioned, the defendant will be discharged only if all the evidence in the case, including that introduced after the entry of the demurrer, is insufficient to support the jury's verdict. For this general proposition, see Com. v. Marino, 142 Pa. Superior Ct. 327, 16 A.2d 314; Com. v. Gomori, 192 Pa. Superior Ct. 325, 161 A.2d 649; Com. v. Reilly, 200 Pa. Superior Ct. 461, 190 A.2d 164; Com. v. Wheeler, 200 Pa. Superior Ct. 284, 189 A.2d 291. He argues, however, that the present case should be distinguished from the above cases because there was no evidence presented by the Commonwealth prior to the demurrer to incriminate Kohne. We cannot agree with this conclusion. The Commonwealth did produce evidence to show that an armed robbery had been attempted by two men in a saloon in the Hill District of Pittsburgh; that a gun battle ensued between the victim and the two men; that 45 minutes later the appellant, Kohne, and Zeid appeared at a hospital in New Kensington, Westmoreland County, both men having been injured; that a ...


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