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COMMONWEALTH PENNSYLVANIA v. FRANK COZART (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK COZART, APPELLANT



NO. 22 OCTOBER TERM, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County at No. 166 October Term, 1971

COUNSEL

George J. D'Ambrosio, West Chester, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, for Philadelphia, for Commonwealth.

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

Author: Van Der Voort

[ 251 Pa. Super. Page 501]

Appellant, Frank Cozart, was charged with two counts of aggravated robbery*fn1 at Number 165 and 166 of the October Term 1971 and one count of carrying a firearm in a public street or public property*fn2 at No. 167 of the October Term 1971. He was found guilty by a jury of one of the charges of aggravated robbery and was acquitted on the other. The charge of carrying a firearm in a public street or public property was nolle prossed. On July 27, 1973, motions for a new trial and/or in arrest of judgment were denied and he was sentenced to a term in a state correctional facility for

[ 251 Pa. Super. Page 502]

    not less than 5 years nor more than 10 years. An appeal to this court was filed on August 13, 1973, however, that appeal was discontinued. On May 28, 1974, appellant filed a petition under the Post Conviction Hearing Act*fn3 which was summarily denied. From that order of court, an appeal was taken to this Court wherein we reversed the order of the lower court and remanded the case for an evidentiary hearing. Commonwealth v. Cozart, 238 Pa. Super. 737, 357 A.2d 175 (1976). The evidentiary hearing was held on June 15, 1976 and on August 17, 1976 the Honorable Allen Doty granted the appellant the right to file an appeal nunc pro tunc, but denied appellant's petition under the Post Conviction Hearing Act. This appeal nunc pro tunc followed.

Briefly, the facts of this case are that on August 17, 1971 two men entered the AMC Paint and Hardware Company located on South 60th Street, Philadelphia, Pennsylvania. One of the individuals was carrying a shotgun and the people in the store at the time were informed that this was a hold up. Approximately $105.00 was taken from Mr. Messado, the proprietor of the store, and $40.00 to $50.00 was taken from the register. The appellant was apprehended by a police officer very shortly after the robbery and was immediately taken back to the store where he was identified by Mr. Messado.

On his appeal nunc pro tunc, appellant raises two issues: 1) the trial court erred in charging the jury on the crime of robbery without defining that crime for the jury, and 2) he was denied effective assistance of counsel in that counsel failed to object to the charge of the trial judge on robbery which charge improperly failed to define the crime of robbery.

In its address to the jury, the lower court charged:

Now, the definition of robbery -- and I give it to you straight from the statute -- whoever robs one another or steals any property from the person of another or assaults any ...


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