Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1974, No. 1040, in case of Commonwealth of Pennsylvania v. Nathaniel Harris.
John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.
Barry H. Oxenburg, 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 Watkins, P.j. Concurring Opinion by Hoffman, J. Spaeth, J., joins in this concurring opinion.
[ 239 Pa. Super. Page 605]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, by the defendant-appellant, Nathaniel Harris, after conviction in a non-jury trial of robbery.
Appellant, Nathaniel Harris, was charged with simple assault and battery and robbery.
The complaining witness, aged 72, testified that an assailant rushed up to him and said "Give me your money old man, give me your money", while grabbing his throat and necktie. The tie broke and the complaining witness fell. While on the ground he was beaten on the face by assailant. A plainclothes officer in an unmarked car saw the "scuffle". As the officer approached, the complaining witness fled. The officer identified himself to appellant and asked appellant "what was up". Appellant allegedly replied "he was punching me". The officer responded that it looked to him that it was appellant who was doing the punching. The officer asked appellant to wait while he investigated. Appellant refused. The complaining witness arrived on the scene and stated that appellant had robbed him. He positively identified appellant as his assailant.
After the trial before a judge, the Court found appellant not guilty of assault and battery and guilty of robbery.
There are two issues: First, the appellant argues that the colloquy before the jury trial waiver did not comply with Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). This matter was neither raised at trial nor at post trial motions. Therefore it is waived. Commonwealth v. Murray, 233 Pa. Superior Ct. 10, 334 A.2d 678 (1975).
A more serious contention is raised by the appellant that the court sitting without a jury is without power to render an inconsistent verdict, i.e., not guilty of assault and battery but guilty of robbery. Both sides concede that juries have the power to render such verdicts.
[ 239 Pa. Super. Page 606]
Mr. Hall, seventy-two years old at the time of the incident, was walking north on 17th Street, near Chestnut Street, in Philadelphia, on September 27, 1974, when appellant attacked him. According to Hall, "[appellant] grabbed me by my throat and my ...