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COMMONWEALTH PENNSYLVANIA v. WILLIAM H. GARDNER (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM H. GARDNER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. JAMES A. WHITE, APPELLANT



Appeals from the Judgments of Sentence of the Court of Common Pleas of Northampton County, Criminal, at Nos. 303 and 265 January Term, 1975. Nos. 792 and 898 October Term, 1976.

COUNSEL

Chester A. Reybitz, Public Defender, Bethlehem, for appellant at No. 792.

Robert C. Brown, Jr., Easton, for appellant at No. 898.

Salvador J. Salazar, Assistant District Attorney, Northampton, and John E. Gallagher, District Attorney, Easton, for appellee.

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

Author: Price

[ 246 Pa. Super. Page 585]

Appellants William Gardner and James White along with a third co-defendant, Earl Heard, were tried jointly on charges of robbery, recklessly endangering another person and criminal conspiracy. The charges stemmed from the February 18, 1975 robbery of an A & P grocery store located at Fifteenth and Northampton Streets, Easton, Pennsylvania. The trial court sustained demurrers by all three defendants on the counts charging recklessly endangering another person. A hung jury resulted in the declaration of a mistrial as to defendant Heard. Appellants, however, were convicted of robbery and conspiracy.

At approximately 8:00 p. m. on February 18, 1975, three black males entered the A & P grocery store. After milling around the store for a few minutes, two of the men, Earl Heard and William Gardner, approached Mrs. Bauchspies, the sole cashier on duty that evening. Mr. Heard purchased a can of dog food and left the store. Although appellant Gardner accompanied Mr. Heard past the check-out counter, no witness knew whether he left the store at this time. In any event, a few minutes later appellants Gardner and White appeared at the check-out counter and purchased two or three packs of cigarettes. Approximately five minutes later, appellants were again observed approaching the cashier. This time they were carrying sandwich rolls

[ 246 Pa. Super. Page 586]

    and lunch meat. After totaling the purchases, Mrs. Bauchspies saw Mr. Gardner place a five dollar bill on the counter. She asked if he had remembered everything this time. Gardner replied, "Yes, I want that drawer." He then reached into his pocket and partially withdrew a pistol. Mrs. Bauchspies saw the pistol and backed away. The gun snagged on Gardner's pocket and Mrs. Bauchspies heard several bullets fall to the counter. Gardner then took $129.00 in bills from the cash register. About this time, Mr. Donald Gilds, a store employee, appeared near the check-out counter. Gardner wheeled around, pointed the pistol at Gilds, and ordered him away from the counter. As Mr. Gilds began to run, a metal instrument, used for marking prices on cans, fell from his pocket. Appellant White shouted, "Hey, he's got a gun, too." The two thieves then left the store with their loot.

Mr. Gilds followed the appellants on foot. As he ran down Pine Street Mr. Gilds observed a white car with a black vinyl top driving away. About this time Gilds met Robert Volkert, who offered to chase the suspects in his car. Although the culprits were travelling at an estimated speed of over 50 miles per hour, Gilds and Volkert got close enough to observe the license number. At the corner of Fourth and Northampton Streets, they saw a policeman, Officer Corvatta, standing in front of a jewelry store. They informed Corvatta of the robbery and gave him the license number and description of the vehicle.

A few minutes later another police officer, John Border, Jr., who was patrolling the area in a marked police van, heard a police radio dispatch announcing the robbery. He began driving toward the A & P. As he approached a traffic circle on Northampton Street he received a second call reporting that the suspect vehicle, a black and white car with three negro males, was stopped at a red light in the traffic circle. When he was three-quarters of the way around the circle, Officer Border observed a black and white Buick occupied by three black

[ 246 Pa. Super. Page 587]

    males. By way of a third radio broadcast Officer Border was informed that Officer Corvatta could see the police van and that it was approaching the suspect vehicle.

Officer Border blew his horn and attempted to block the Buick's path. The vehicle began moving, however, and Border rammed the van into the side of the car, pushing it onto the sidewalk. Instead of stopping, the suspect vehicle sped away. Officer Border pursued with the van's siren on and lights flashing. The chase ended when the driver of the fleeing vehicle lost control and struck a car travelling in the opposite direction. The three men got out of the car and began running. Officer Border shouted a warning and, when the men failed to stop, fired several shots with his shotgun. Mr. Heard fell to the ground. ...


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