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COMMONWEALTH v. KELLY. COMMONWEALTH (12/01/75)

decided: December 1, 1975.

COMMONWEALTH, APPELLANT,
v.
KELLY. COMMONWEALTH, APPELLANT, V. WILDE



Appeals from orders of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1973, No. 2479A, and April T., 1973, No. 3080A, in cases of Commonwealth of Pennsylvania v. Kenneth Kelly and Same v. James K. Wilde.

COUNSEL

Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.

John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellees.

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

Author: Price

[ 237 Pa. Super. Page 470]

This appeal by the Commonwealth questions the propriety of the lower court's action in granting demurrers to the charges of armed robbery*fn1 filed against both appellees, co-defendants below.*fn2

The standard in ruling on a demurrer is whether the evidence of record and the inferences reasonably drawn therefrom would support a verdict of guilty. Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969); Commonwealth v. Gladden, 226 Pa. Superior Ct. 13, 311 A.2d 711 (1973); Commonwealth v. Green, 210 Pa. Superior Ct. 482, 233 A.2d 921 (1967). The trial court should not weigh the evidence, but should apply the law to that evidence and determine whether it is sufficient to sustain a verdict of guilty.

The evidence introduced at trial consisted of the testimony of the victim, Samuel Wasser, and that of the arresting officer, Dennis Horgan. Mr. Wasser stated that two men entered his pharmacy at approximately 5:45 p.m. on February 27, 1973. One man, later identified as appellee Wilde, sat at the counter drinking a milk shake. The other went to the back counter where prescriptions are filled. Mr. Wasser stated that he was wrapping a package for delivery as the second man approached. When he looked up, he saw that the man was wearing a ski mask and holding a brown hand gun,*fn3 pointed at the

[ 237 Pa. Super. Page 471]

    victim's face, and heard him say, "Keep your hands on the counter. Don't move. If you want to live, I want all your class A narcotics." (NT 12) In the meantime, Wilde had left the store and started the motor of an awaiting car.*fn4

The pharmacist gave the man all the requested drugs. He was then told to lie on the floor. He heard the robber trying to open the cash register, and then heard him leave the store.*fn5 Mr. Wasser immediately called the police and described the two men.

Officer Horgan testified that he and his partner received the description over police radio. He stated that the broadcast indicated two white males had robbed the Bryant Street drugstore. One was approximately six feet tall, weighing one hundred sixty pounds, and wearing a green army fatigue jacket. The other was about five feet ten inches tall and one hundred fifty pounds in weight. This man was also described as having brown, wavy hair.

At the time he received the description, Officer Horgan was eight to ten blocks from the scene of the crime. He and his partner noticed a car coming toward them, containing two white males, who fit the general description. They turned to follow the car, but as they approached, the suspects, later identified as Kelly and Wilde, "took off at a high rate of speed." (NT 95) The policemen pursued the vehicle for four blocks, until it was trapped in a dead end street. Kelly ran through the woods but was chased and captured by the second ...


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