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COMMONWEALTH v. FEILING (03/20/69)

decided: March 20, 1969.

COMMONWEALTH
v.
FEILING, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Greene County, Feb. T., 1967, No. 3, in case of Commonwealth of Pennsylvania v. Francis Henry Feiling.

COUNSEL

Ewing B. Pollock, with him Pollock, Pollock & Thomas, for appellant.

W. Bertram Waychoff, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 214 Pa. Super. Page 209]

Kormuth's Tavern in Clarksville, Greene County, Pennsylvania was robbed by four men about 10:30 p.m. on February 23, 1967 while it was open for business. This appellant, wearing a ski-toboggan cap, black boots and long black gloves, entered the tavern first, ordered a beer and was drinking it when three other men entered. They were also wearing ski masks and were armed with a gun. All four then participated in tying up the bartender, a patron and the owner, and robbing the tavern and living quarters of the

[ 214 Pa. Super. Page 210]

    owner on the floor above. They took 50 to 70 dollars in currency, an antique coin collection, and three cases of whiskey which they loaded in a Ford pick-up truck having cardboard signs bearing "Erie Electrical Conduit Co." fastened to each door panel. They were seen loading the truck and escaping in it by the Borough Constable Joseph Shulsky, and the Borough Policeman Robert Post, who called the State Police. The truck had left before the State Police arrived at the scene of the robbery but was overtaken by them after they had pursued it for eight miles. When overtaken, the truck had but one occupant, this appellant, Francis Henry Feiling. The other three men were never apprehended, nor were the stolen whiskey and other stolen items in the truck when overtaken. However, there were found therein the cardboard placards, black leather gloves, a ski mask and revolver bullets.

The State Police immediately brought appellant back to the tavern where he was identified as one of the robbers. He was subsequently indicted for armed robbery, found guilty of that crime by a jury, and sentenced January 12, 1968. This appeal followed on February 13, 1968.

Subsequently, on March 4, 1968 appellant filed a petition for a post-conviction hearing, and a rule was granted thereon directed to the Commonwealth of Pennsylvania to show cause why a hearing should not be granted to the petitioner. Ewing B. Pollock, Esq., was then appointed to represent petitioner. An answer was filed to that petition and rule, but the record before us shows no further action taken in that proceeding. Since this is a direct appeal from the judgment of sentence and not inclusive of the post-conviction hearing proceeding we shall consider only those matters considered by the lower court on appellant's motion for a new trial, and refrain from considering

[ 214 Pa. Super. Page 211]

    the other matters raised by appellant in his post-conviction petition.*fn1

The errors now contended which were advanced in the lower court as reasons for a new trial ...


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