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COMMONWEALTH v. HOLMAN (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
HOLMAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1974, No. 2236, in case of Commonwealth of Pennsylvania v. Benjamin Holman.

COUNSEL

Robert Jay Vedatsky, with him Sarner, Borofsky & Stein, for appellant.

Francis C. Barbieri, Jr., Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, submitted a brief for Commonwealth, appellee.

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

Author: Cercone

[ 237 Pa. Super. Page 293]

Appellant was tried in September, 1974, before a judge without a jury. The indictments charged appellant with conspiracy, simple and aggravated assault, and robbery. He was found guilty only of criminal conspiracy*fn1 and was sentenced to the Philadelphia County Prison for a period of not less than eleven and one-half nor more than twenty three and one-half months.

This case concerns a purse snatching incident involving three victims who were assaulted by four persons. Four defendants were apprehended near the scene shortly after the incident and were then and there identified by the victims as the perpetrators of the crime. The following day appellant, who was not one of the four defendants caught near the scene, surrendered himself to the police claiming that he alone was involved in the occurrence. Appellant then signed a written statement confessing to the assault and robbery of one of the three women victims. As the officer who took the statement testified, appellant's confession conformed in all respects to the details of the crime as related by the victims, except that appellant claimed that he was the only perpetrator of the crime. No question is raised in this appeal concerning the voluntariness of that statement.

At the preliminary hearing, the victims testified that they had been attacked by four men. While none of the

[ 237 Pa. Super. Page 294]

    victims could describe any of the assailants, they did identify the four defendants arrested at the scene and at least one of the victims who did not testify at appellant's trial, identified appellant as being one of the attackers. There arose, therefore, a discrepancy in the eyewitness identification that was never resolved. At appellant's separate trial the Commonwealth presented only one of its eyewitnesses, Mrs. Tomlin. She could not identify appellant as one of her assailants. Thus, the only evidence remaining against appellant was his statement that he alone had committed the crime and the testimony of Tomlin that she and her companions were set upon by four men. Appellant then, for the first time, repudiated the details of his written and signed confession, alleging that he had not been given an opportunity to read it. Nevertheless, the confession was admitted into evidence.

Following presentation of the Commonwealth's case, appellant demurred to all charges. The demurrers were sustained as to the assault and robbery charges but overruled as to the conspiracy charge. The Commonwealth filed no appeal on these demurrers and in fact concurred in the sustaining of the demurrers to the assault and robbery counts.

In this appeal, appellant contends: (1) that he was convicted on grounds other than those appearing in the conspiracy indictment; (2) that the doctrine of collateral estoppel barred his conviction of conspiracy after the demurrers to the charges of robbery and ...


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