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COMMONWEALTH v. ESPOSITO (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
ESPOSITO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Northampton County, May T., 1974, No. 274, in case of Commonwealth of Pennsylvania v. Catherine Esposito.

COUNSEL

George A. Heitczman, Associate Public Defender, for appellant.

Salvador J. Salazar, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

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

Author: Cercone

[ 236 Pa. Super. Page 128]

This appeal arises from the conviction, after a jury trial, of appellant, Catherine Esposito, of conspiracy. On this appeal appellant charges that: (1) the evidence was insufficient to support the verdict; (2) the court erred in permitting the Commonwealth to prove subsequent acts of the alleged co-conspirators prior to proving an unlawful agreement; (3) the court erred in admitting prejudicial and irrelevant testimony; (4) the court participated in the questioning as an advocate; and, (5) the court erred in refusing various points for charge proffered by appellant. All these allegations of error are non-meritorious and we shall affirm.

On January 24, 1974, two black males entered a supermarket in Bethlehem, Pennsylvania, procured a carton of Kool cigarettes, and stood in the check-out line.

[ 236 Pa. Super. Page 129]

When the men reached the cashier, one of them drew a gun and announced the men's intention to rob the store. At gunpoint, the store manager was forced to open the safe and deliver his wallet to one of the bandits. Simultaneously, the other man emptied the contents of the cash register. Upon leaving the market with their loot, the men entered an awaiting car and slumped down in the back seat.

Fortunately, Mr. and Mrs. Leary were waiting at a traffic light behind the alleged getaway car. Their attention was aroused by seeing one of the men carrying a mask, and their suspicions of foul play were confirmed when the men slumped down in the back seat after entering the awaiting vehicle in front of the Learys. Both Mr. and Mrs. Leary noted that the driver and the passenger in the front seat of the tan Ford had blondish hair and appeared to be females. The Learys followed the car long enough to record its license number which they supplied to the police.

As a result of the description of the vehicle and its license number, the Easton police pulled the car over some three hours later. Its occupants included the driver (who is appellant herein), Diane Border, and two black males. Both appellant and Miss Border are blondes. Upon searching the car the police found the piece of cloth used as a face mask, rolls of nickels and pennies, empty and full packages of Kool cigarettes, an expended shell casing, and a bag containing an unspecified amount of money. Appellant's purse contained four empty packages of Kool cigarettes while Miss Border's purse contained a one-dollar roll of nickels and two packs of Kool cigarettes. The car itself belonged to appellant's father.

The appellant's first contention, insufficiency of the evidence, is clearly frivolous. She was the driver and custodian of the getaway car, and the police found some remnants of the day's booty on her person. While it is true ...


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