Appeal from Judgment of Sentence Imposed June 6, 1974 in the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, Pennsylvania, at Nos. 673, 674 February Term, 1974.
Ronald Morrison, Philadelphia, for appellant.
Joel W. Todd, Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.
[ 248 Pa. Super. Page 312]
This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County. Appellant
[ 248 Pa. Super. Page 313]
was convicted, after a non-jury trial, of robbery and conspiracy. Motions for a new trial and arrest of judgment were denied and appellant was sentenced, on June 6, 1974, to one to ten years imprisonment on the robbery charge. On February 24, 1975, he filed a petition under the Post-Conviction Hearing Act, with the result that he was granted the right to appeal nunc pro tunc.
The sole question presented is whether the evidence is sufficient to sustain the conviction. The test of sufficiency is whether, accepting as true all the evidence and all reasonable inferences therefrom upon which the verdict could have been based, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Smith, 447 Pa. 457, 463, 291 A.2d 103 (1972).
The Commonwealth's evidence showed that on September 14, 1973 appellant and a companion drove into a gasoline station located at Broad and Bainbridge Streets in Philadelphia. They borrowed a tire iron from the manager for the purpose of changing a flat tire. After they had changed the tire, and while appellant's companion was returning the tire iron, a man subsequently identified as Odine Bradley walked past appellant's car into the station, robbed an attendant at gunpoint, and walked away. Appellant's companion watched the robbery then returned to the car, which "shot out of the gas station," although in a different direction from that in which Bradley had departed. The manager called the police. The attendant, suspecting that the men in the car had been "trying to look out for" the robber, gave the police a description of the car. The conclusion that appellant and his companion were accomplices was based in part on the conduct of appellant's companion, who loitered suspiciously in the gas station after returning the tire iron, until Bradley appeared. The description of the car was broadcast, and about an hour later, it was sighted and stopped and appellant was arrested. He made a statement
[ 248 Pa. Super. Page 314]
at the police station which the investigating officer paraphrased as follows:
"He said that the car was his, and he had been at the gas station with a flat tire. He said that his lug wrench did not fit, and one of the men with him borrowed a wrench from the attendant and they changed the tire. After the tire was changed, Odine Bradley held up and robbed the attendant, and they fled in his car and went to the house at 2020 Ellsworth Street. He said the other man with them was Stan Fox, and that both of them were in the house at Ellsworth Street waiting ...