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COMMONWEALTH v. BAKER (11/11/71)

decided: November 11, 1971.

COMMONWEALTH
v.
BAKER, APPELLANT



Appeal from judgment of sentences of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1970, No. 1399, in case of Commonwealth of Pennsylvania v. Johnny Baker.

COUNSEL

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

Louis A. Perez, 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. Opinion by Cercone, J.

Author: Cercone

[ 220 Pa. Super. Page 87]

This is an appeal from the lower court's refusal to grant appellant's motion for new trial or arrest of judgment following conviction, after jury trial, of the crime of robbery.

The circumstances surrounding the robbery, as placed in evidence by the Commonwealth,*fn1 were as follows:

At about 2:00 p.m. on Friday, July 17, 1970, Miss Miriam McCurdy, an employee of the Pennsylvania Department of Welfare, was returning to her office at 2925 N. Broad Street in Philadelphia. Shortly before, Miss McCurdy had gone to a nearby Central Penn National Bank Office to cash a personal check; the money had been placed in a Central Penn envelope. At the entrance to the Department of Public Assistance Office, Miss McCurdy began a conversation with a fellow employee, Mrs. Viola Byrd, during which Miss McCurdy remarked that a "man across the street appeared to be ill." Suddenly, Miss McCurdy saw this man run toward them and reach for the envelope containing the money which she was holding in her hand. Miss McCurdy grabbed the envelope with her other hand and looked at the man's face to see if she could recognize him. During the struggle, Miss McCurdy was thrown to the ground and lost control of the envelope. As the man started to flee, he lost one of his shoes. Mrs. Byrd picked up the shoe and joined the pursuit. A motorist attracted a passing police wagon. Following the directions given by several bystanders, Officer Charles Lorenz

[ 220 Pa. Super. Page 88]

    and his partner went to a dead-end alley located near 1338 Toronto Street. The officers entered a partially boarded-up vacant house at this address. Approximately ten feet from the stairs leading to the second floor, Officer Lorenz found another shoe, the mate to the one Mrs. Byrd picked up.

The officer then heard the sound of movement upstairs and ran to the backyard, where he saw the appellant hanging from the second story window. The appellant fell and was arrested. He was not wearing any shoes.

Officer Lorenz reached the rear yard and recovered two envelopes. One of them contained the mark "CM". Miss McCurdy testified she received from the bank an envelope marked "CM", but could not positively identify the envelope as the one taken from her.

Mrs. Byrd testified that she gave the shoe she found to Miss McCurdy. Miss McCurdy testified that she saw Mrs. Byrd pick up the shoe and that Mrs. Byrd gave her the shoe and that she in turn gave it to the police. Officer Lorenz identified the two shoes, the right one as the one he received ...


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