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COMMONWEALTH v. ACKERMAN (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
ACKERMAN, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1974, Nos. 1890, 1891, and 1892, in case of Commonwealth of Pennsylvania v. Lorenz F. Ackerman.

COUNSEL

David H. Kubert, for appellant.

William H. Richardson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Price J. Hoffman and Cercone, JJ., concur in the result.

Author: Price

[ 239 Pa. Super. Page 189]

On August 5, 1974, the lower court, sitting without a jury, adjudged defendant-appellant Lorenz F. Ackerman guilty of felonious restraint,*fn1 simple assault,*fn2 and

[ 239 Pa. Super. Page 190]

    criminal conspiracy.*fn3 Because the lower court erred in convicting appellant of unlawful restraint, the judgment of sentence of the lower court as to that charge alone must be reversed.

The facts, read in a light most favorable to the verdict-winner, Commonwealth v. Porter, 229 Pa. Superior Ct. 314, 323 A.2d 128 (1974), are as follows: On the afternoon of December 7, 1973, appellant and his co-defendant, Angelo Carmello, were piloting a forty foot tractor-trailer on the Roosevelt Boulevard Extension of the Schuylkill Expressway. When they came to the vicinity of the intersection of Broad Street and Roosevelt Boulevard, their vehicle was struck by a bottle hurled by William Rawl. Rawl had been walking home from school with his 13 year-old friend, Willy McDaniel.

The missile hit the truck just below the windshield, causing some damage. The two men stopped the truck, alighted, and pursued the youths. William Rawl managed to escape, but Willy McDaniel was not so fortunate. Carmello caught McDaniel and escorted him back to the truck where appellant, in a fit of anger, threw him to the earth. McDaniel testified that appellant placed his knee on McDaniel's chest and hit him on the cheek, knocking out one of his teeth. They then loaded the youth into the cab of the truck, telling him they were taking him to a police station.

The two men, with their captive, proceeded south, purposely driving slowly in order to attract the attention of the police. This tactic failed, however, and they followed the Schuylkill Expressway to the King of Prussia exit. From there, they followed Route 411 to the Lower Providence Township Police Station, where the boy was placed in the custody of Sergeant Joseph Nagle of the Lower Providence Township Police Department. The twenty-five mile journey had lasted one hour.

Sergeant Nagle testified that when he ...


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