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COMMONWEALTH PENNSYLVANIA v. HENRY KIDD (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
HENRY KIDD, APPELLANT



No. 1157 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section as of Nos. 1399 and 1402 of Dec. Sessions, 1974.

COUNSEL

Mary Bell Hammerman, Philadelphia, for appellant.

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

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

Author: Cercone

[ 251 Pa. Super. Page 142]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division of the County of Philadelphia, by the defendant Henry Kidd, who was convicted by a jury of robbery and criminal conspiracy. Post-trial motions were denied by the court, and appellant was sentenced to undergo imprisonment for not less than seven and one-half years nor more than twenty years, with ten years' probation to ensue.

Appellant's first contention on this appeal is that his arrest was not supported by probable cause. Appellant

[ 251 Pa. Super. Page 143]

    however, failed to raise this issue on post-trial motions and is therefore precluded from raising it on appeal. Commonwealth v. Blevins, 459 Pa. 652, 331 A.2d 180 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); Commonwealth v. Keysock, 236 Pa. Super. 474, 345 A.2d 767 (1975).

Appellant next contends that the evidence was not sufficient to sustain a conviction for robbery and criminal conspiracy. While it is true that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, the Commonwealth may sustain this burden wholly by means of circumstantial evidence. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. James, 230 Pa. Super. 186, 326 A.2d 548 (1974). It is also well settled that the test in a criminal case of the sufficiency of the evidence is:

"Whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. James, supra; Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973).

The record establishes the following facts: On the morning of November 23, 1974 at approximately 3:30 A.M., Robert Blackburn was working in the Roy Rogers Roast Beef Restaurant at Front Street and Oregon Avenue in Philadelphia. The restaurant closed at 1:00 A.M. and Mr. Blackburn, the assistant manager, was finishing his daily paper work. While so engaged, someone grabbed him around the neck from behind and pressed something that felt like a gun against his neck. He was forced to open the safe and to remove approximately $1,400 kept in two Provident National Bank deposit bags, and a brown envelope marked "Marriott Corporation." Mr. Blackburn could not see his assailants clearly but did ascertain that ...


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