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COMMONWEALTH v. MCCOY (06/30/71)

decided: June 30, 1971.

COMMONWEALTH
v.
MCCOY, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1968, Nos. 1082, 1083, and 1084, in case of Commonwealth of Pennsylvania v. Sterling McCoy.

COUNSEL

John O. Cole and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Victor J. DiNubile, Jr. and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 219 Pa. Super. Page 299]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent.

On October 15, 1969, appellant Sterling McCoy was convicted by a jury on indictments charging aggravated robbery, aggravated assault and battery, and carrying a concealed deadly weapon. On October 24, 1969, motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to 7 1/2 to 15 years on the robbery bill. Sentence was suspended on the other bills.

These charges arose from a hold-up in which a bartender was robbed of his wallet by two armed men. The police, arriving on the scene shortly thereafter, arrested appellant inside the bar. He was not armed, but a shotgun was found on the floor of the bar. His co-defendant, Oliver Johnson, was arrested outside the bar, armed with a loaded pistol. The two men were tried jointly.

On this appeal, appellant avers that the trial court's instructions to the jury on applying the standard for proof beyond a reasonable doubt, taken as a whole, constituted fundamental error. In addition, he argues that he was prejudiced by the unprompted use of a charge which urged the ...


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