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COMMONWEALTH v. FAVORS (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
FAVORS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, Nos. 1502 and 1503, in case of Commonwealth of Pennsylvania v. Augustus Favors.

COUNSEL

Louis Lipschitz, and Lipschitz and Danella, for appellant.

Milton M. Stein and James T. Ranney, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Watkins

[ 227 Pa. Super. Page 122]

This is an appeal from the judgment of sentence by the Court of Common Pleas of Philadelphia County, after conviction of the defendant, Augustus Favors, of aggravated robbery. He was sentenced to 1-1 1/2 to 8 years.

The case was tried before the trial judge without a jury and he waived his right to jury trial in accordance with Rule 1101, Pennsylvania Rules of Criminal Procedure.

The colloquy record made prior to accepting his waiver is as follows: "Q. You are waiving your right to a jury trial voluntarily and willingly? A. Yes, Sir. Q. Are you satisfied with your representation by Mr. Stanshine (an Assistant Voluntary Defender)? A. Yes, sir. Q. You had a chance to discuss the case thoroughly with him A. Yes, sir. Q. Are you sure? A. Well, not too much in detail. No, sir. Q. You have some serious charges here and we want to make sure that you are ready to defend yourself through your counsel. Do you think you need more time? A. No, sir. No, sir, I don't think I need any more time."

We feel this record colloquy was sufficient to indicate a knowing and intelligent waiver of his right to a jury trial. This position is buttressed by the fact that this was a second time that this man was on trial for the same charges and he waived his right in the first trial. Commonwealth ex rel. Henderson v. Maroney, 448 Pa. 411, 293 A.2d 64 (1972).

As to the suppression of the evidence issue, we hold that the court below properly refused to suppress. The record established that on October 29, 1970, the victim was standing at the intersection of 19th and Jefferson

[ 227 Pa. Super. Page 123]

Streets, Philadelphia, at about 1:00 o'clock a.m., after just having accompanied his sister-in-law from the "Play Bar", located at the intersection, and having escorted her to a taxicab. As the taxicab drove north on 29th Street, three males crossed the street from a white Ford Mustang automobile which was parked in front of a grocery store, and one of the males pointed a pistol to the victim's face and said, "Give it up." The victim stated that he raised his hands and the defendant took two twenty dollar bills and removed his wrist watch. The two men then fled in the white Ford Mustang and drove off at a high speed. The victim positively identified the defendant as the individual who went into his pockets and who took his watch from his arm. He stated that he was face-to-face with the three men who robbed him and he described the defendant as having an "Afro-bush" haircut and was wearing black gloves and an Army-type jacket.

Almost immediately after the robbery, a police car came along and he hailed the car and told the police officer that he had been robbed and described the white Ford Mustang. He stated that he stood on the corner and waited and within minutes the officer returned with the defendant whom he promptly identified.

The police officer testified that he was hailed by the victim and that he pointed out a white Ford Mustang headed east on Jefferson Street. The officer immediately gave pursuit and at 28th and Jefferson Streets, the Mustang stopped and two males ran from the automobile. One ran north and the other south. The officer turned south and at the intersection of 28th and Master Streets, he observed the defendant standing on the corner. This was only a few minutes after he had been informed of the ...


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