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COMMONWEALTH v. WEAVER (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
WEAVER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, No. 948, in case of Commonwealth of Pennsylvania v. Lawrence Weaver.

COUNSEL

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

David Richman, William P. Boland, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 231 Pa. Super. Page 222]

The Defendant-Appellant Lawrence Weaver was tried and adjudged guilty on December 8, 1972 of aggravated

[ 231 Pa. Super. Page 223]

    robbery by Judge Herbert Salus, Jr., sitting without a jury. Post-trial motions were filed, heard and denied on February 13, 1973 after which determination, the Appellant was sentenced to not less than six months nor more than three years in the State Correctional Institution. This direct appeal was taken following the sentence.

On May 2, 1972, at about 9:10 P.M., John Scannapieco was standing in a subway station at 34th and Market Streets on the platform waiting for a train. He was alone. The Appellant came over to Mr. Scannapieco and asked him for a cigarette. After receiving a negative reply, the Appellant asked Mr. Scannapieco if he was interested in a "38", at which time the Appellant showed Mr. Scannapieco his pocket which had the outline of a gun in it and the Appellant had his hand in the pocket where the gun was. After receiving another negative reply, the Appellant said to Mr. Scannapieco, "Don't make any jokes, I want your money." The victim then replied that he did not have any money. About that time another person came up behind the victim and the Appellant spoke again saying: "He is with me. Give me your money, we will blow a hole in your head." The victim told the two men he still had no money whereupon the man who had come up behind the victim took the victim's wallet out of his pocket and took the money ($18.00) out of it. The victim was then commanded by the Appellant not to say a word or he would be shot and to get on the next train which came in about five or six minutes. During that time the victim conversed with his assailants. They told him they needed the money for dope. The victim suggested they go to a hospital and get treatment to solve their problem. He was told by them that that wouldn't work and Appellant said, "Well, maybe we ought to shoot you. We can have some fun." All in all, the victim and his assailants were together for eight or

[ 231 Pa. Super. Page 224]

    nine minutes in a well-lighted place at which time Appellant was never more than thirty inches from Mr. Scannapieco.

The victim boarded the next train, informed the conductor what had happened and reported the matter to the police whom the conductor had asked to be at the next stop.

On August 22, 1972, Mr. Scannapieco received a call from the Philadelphia Detective Division that it had a couple of suspects in custody and would like him to view a line-up at West Detective Offices. Mr. Scannapieco was at work at the time and said he would come down. The Appellant had been arrested at 9:15 P.M. on another charge and brought into West Detective Offices on August 21, 1972. He was in charge of Detective Brennan. The Appellant was fed a ham sandwich, coffee, soup and cake and was placed in an 18th District cell block. Detective Brennan left a note for Detective Salvatore Gerace that Appellant had been arrested under conditions similar to the Scannapieco robbery and that a stand-up should be had with him. Detective Gerace received this message on August 22nd at 11:00 A.M. At 1:45 P.M., Appellant was fed again in a manner similar to his previous meal and held in the Detective's Room. At 3:00 P.M., Detective Gerace contacted Mr. Scannapieco about coming down to West Detective Offices; he contacted the Public Defender and Attorney Steven Laver was informed that a stand-up would be held around 6:00 o'clock and that transportation to West Detective Offices would be provided for him if he wanted it. Mr. ...


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