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COMMONWEALTH v. AUSTIN (06/13/68)

decided: June 13, 1968.

COMMONWEALTH
v.
AUSTIN, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Philadelphia County, July T., 1967, No. 4, in case of Commonwealth of Pennsylvania v. Robert Austin.

COUNSEL

Walter Lowney and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

Alan J. Davis, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.

Author: Per Curiam

[ 212 Pa. Super. Page 297]

Judgment of sentence affirmed.

Disposition

Judgment affirmed.

[ 212 Pa. Super. Page 298]

Dissenting Opinion by Hoffman, J.:

Appellant was tried before the court below without a jury and found guilty of assault with intent to ravish. Oral motions for a new trial and in arrest of judgment were denied, and appellant was sentenced on November 20, 1967, to one to five years' imprisonment.

To sustain a conviction in any case, the facts and circumstances must be of such a nature as to establish guilt beyond a reasonable doubt. E.g., Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85 (1964). It is my opinion that the proof in this case was not sufficient to sustain the Commonwealth's burden of proof.

The complaining witness, Victoria Hayes, testified that on May 24, 1967, at about 9:30 p.m. at 15th and Cumberland Streets in Philadelphia, a residential area, appellant approached her and said hello. Other pedestrians were about and people were in apartments nearby looking out of windows. Miss Hayes stated that appellant told her that he had met her previously at a bar, and she replied that he was mistaken. She conversed with appellant for a while and then stated she was going to the store. Appellant replied that he had a gun and she must go with him. Specifically, she stated that he told her that ". . . if I did not go with him that he would shoot me and that I had a pretty face and it's a shame it had to be messed up."

Appellant then grabbed her by the arm and neck. Miss Hayes said that she saw a person in a phone booth across the street and started screaming. At the same time, she testified that she tried to run into the street to hail a car, but appellant was pulling her toward an alley. As a result of her actions, Miss Hayes and appellant fell to the ground, about five ...


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