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COMMONWEALTH PENNSYLVANIA v. MARK ECKERT (12/15/76)

decided: December 15, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK ECKERT, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Berks County, at No. 52 of 1975. No. 332 October Term, 1976.

COUNSEL

William F. Ochs, Jr., Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.

Author: Cercone

[ 244 Pa. Super. Page 427]

Appellant, Mark J. Eckert, was tried before a jury and found guilty of robbery, theft by unlawful taking or disposition and recklessly endangering another person. He appeals his conviction following denial of motions for a new trial or in arrest of judgment.

At 9:30 P.M. on December 14, 1974, a masked, armed individual robbed Anspach's IGA Market in Womelsdorf, Berks County. One cashier succeeded in partially foiling the robbery by pretending the register would not open. Another cashier was forced at gunpoint to turn over the cash in the register. Two cashiers running after the robber as he left the store saw him get into a "green medium sized car" or a "light green Firebird." Two police officers sitting in a parking lot across from the market saw the man proceed from cashier to cashier, run out of the market and enter a "1970 or 1971 green Pontiac Firebird." Unable to stop the car in the parking lot, the officers fired at the car as it sped away and several of the bullets struck the fleeing vehicle. Giving chase, the police lost the vehicle in a field. A description of the car was broadcast to police in the area.

Approximately an hour and one-half later, at 11:07 P.M., two State Police officers stopped appellant's car on the highway about 12 miles from the market where the robbery occurred because it fit the description of the getaway vehicle as broadcast. They looked at the car briefly, took information concerning appellant's identity and then allowed him to leave. Appellant, who was on parole at the time of his encounter with the police, reported to his parole officer as the terms of his parole required. The parole officer informed the investigating officers of appellant's parole status, prior record and lack of permission to be in the area where he was stopped. The information led to further investigation of appellant as a suspect in the market robbery.

[ 244 Pa. Super. Page 428]

The State Police obtained two warrants to search appellant's car. Before executing the first warrant, the police read the warrant to appellant and advised him of his Miranda rights. The police then told appellant that they were going to secure a search warrant for his home. Having been informed of his rights, appellant nevertheless told the police a warrant would not be necessary since he would consent to a search of his home. See Commonwealth v. Richard, 233 Pa. Super. 254, 336 A.2d 423 (1975). Appellant gave a written consent to the search.*fn1 The searches disclosed damages to and recent repairs on his car. The repairs were apparently made at the places where the police bullets struck the car. A .38 caliber copper colored bullet was found inside the patched spare tire in the trunk. Two external car mirrors were discovered during a search of appellant's premises. One of them was broken. The glass of the broken mirror matched pieces of glass found at the scene of the crime.

First, appellant contends the evidence was insufficient to sustain his conviction. The test of the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found all the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975); Commonwealth v. Moore, 226 Pa. Super. 32, 311 A.2d 704 (1973). The Commonwealth may sustain this burden by means of wholly circumstantial evidence, though it cannot rest solely on mere suspicion or conjecture. Commonwealth v. Goodman, 465 Pa. 367,

[ 244 Pa. Super. Page 429350]

A.2d 810 (1976); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Stevens, 237 Pa. ...


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