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COMMONWEALTH v. MILLINER (09/21/71)

decided: September 21, 1971.

COMMONWEALTH
v.
MILLINER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 1450, in case of Commonwealth of Pennsylvania v. John Milliner.

COUNSEL

Michael L. Levy, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him Arthur G. Makadon, Assistant District Attorney, 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, and Cercone, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Wright, P. J., concurs in the result.

Author: Hoffman

[ 219 Pa. Super. Page 360]

Appellant was indicted on Bill Nos. 1450, 1451, 1452 and 1453, May Sessions, 1970, charging him respectively with aggravated robbery, carrying a concealed deadly weapon, receiving stolen goods and assault and battery. He was tried by a Judge sitting with a jury and convicted on all four charges. Sentencing was deferred until September 29, 1970, at which time appellant was sentenced to serve from eight to sixteen months in the County Prison on Bill No. 1450. Sentence was suspended on the other Bills.

Thereafter the Commonwealth filed a petition for reconsideration of sentence. Pursuant to this petition another hearing was held and the trial judge vacated the sentence on Bill 1450 and imposed a new sentence

[ 219 Pa. Super. Page 361]

    thereon of three to six years in a State Correctional Institution. This appeal followed.

Appellant first contends that the trial court committed reversible error in that portion of the charge to the jury explaining the Commonwealth's burden of proof. The court initially charged that:

". . . [I]t is the job of the Commonwealth to bring before you such narration, such tellings, in brief such testimony, that the jury upon considering all of it will come to the conclusion that the testimony satisfies you upon a consideration of all of the testimony beyond a reasonable doubt that those charges are proved.

"Your question always is as to each one of the charges, does the testimony bring you to the point where you say that you are convinced beyond a reasonable doubt that those charges have been made out, and that upon a consideration of all of the testimony.

"So you take the testimony on one side and the other. You ask yourselves what does the testimony, all of it, separately and collectively establish, prove? How much reliability, how much belief, how much confidence do you ...


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