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COMMONWEALTH v. MASON (12/14/67)

decided: December 14, 1967.

COMMONWEALTH, APPELLANT,
v.
MASON



Appeal from order of Court of Oyer and Terminer of Allegheny County, Jan. T., 1967, No. 19, in case of Commonwealth of Pennsylvania v. Lee Mason et al.

COUNSEL

Richard P. Jacob, Assistant District Attorney, with him Charles B. Watkins and Edwin J. Martin, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellant.

B. Brown, with him George H. Ross and Thomas A. Harper, for appellee.

Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 211 Pa. Super. Page 329]

This is an appeal by the Commonwealth from the order of the court below sustaining the demurrers of the defendants Lee Mason and Frank M. Durden, on charges of armed robbery and receiving stolen goods. The case was tried before Hon. Arnold D. Smorto, President Judge, specially presiding, without a jury. Although in his opinion, written later, the trial judge states, "we were treating our decision on the demurrer as a verdict of not guilty", the record and the docket entries show that demurrers were sustained and no verdicts of not guilty entered.

[ 211 Pa. Super. Page 330]

An order sustaining a demurrer to the Commonwealth's evidence in a criminal prosecution is clearly appealable by the Commonwealth. Commonwealth v. Page 330} Green, 210 Pa. Superior Ct. 482, 233 A.2d 921 (1967). The test in determining the validity of a demurrer is whether the evidence of record and inferences reasonably drawn therefrom support a verdict of guilty. Commonwealth v. Dennis, 211 Pa. Superior Ct. 37, 234 A.2d 53 (1967); Commonwealth v. Wheeler, 200 Pa. Superior Ct. 284, 189 A.2d 291 (1963).

The Commonwealth produced the following evidence. About 2:00 a.m. on November 23, 1966, Robert McGowan stopped for a traffic light in the Borough of Homestead. The defendant Lee Mason approached his car and asked him to drive her to McKeesport. After entering the car Lee Mason asked McGowan if he "would like to have a good time". McGowan agreed, paid her $5.00, whereupon she directed him to a vacant double garage on a side street. As McGowan picked up Lee Mason he saw a grey Pontiac Sedan (1962) pass through the intersection and noticed the occupants looking back at his car. McGowan noticed the first number in the Pontiac license plate was a "7" and the last numbers were "11 U".

McGowan drove his car as directed by Lee Mason into the double garage and proceeded to lock the doors of his car but when his companion objected, he unlocked them. They then sat in the back seat of the car and engaged in sexual intercourse. During this engagement four men appeared, two on each side of the car. The men opened the door of the car and one, identified as Bo Brown, held a six inch knife blade at McGowan's throat, demanding his wallet. McGowan had no wallet but emptied his pockets of $16.00, and gave the men the keys to the car. Although the car had no dome light, the victim was able to see the robbers from the street light outside. The victim testified that Bo Brown gave the knife to Frank Durden, who held the knife on him while two of the other robbers cleaned out the trunk of his car and transported the

[ 211 Pa. Super. Page 331]

    articles to the 1962 Pontiac. McGowan again noticed the first and last numbers of the license plate as "7 . . . 11 U". Lee Mason was allowed to leave the car as the men came on the scene. In the process of robbing McGowan, Brown and Durden beat him severely.

Just before the incident Hanna observed Durden in his 1961 Pontiac, bearing license No. 77511U, parked across the street from the corner where McGowan picked up Lee Mason and saw it follow McGowan's car. A detective of the McKeesport police testified that following a police report, he observed Durden driving the Pontiac, license No. 77511U on November 25, 1966. ...


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