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COMMONWEALTH PENNSYLVANIA v. DAVID KLOSS (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID KLOSS, APPELLANT



No. 543 April Term 1976, Appeal from the Sentence of February 27, 1976 of the Court of Common Pleas of the County of Lawrence, Pa., Criminal Div. at No. 658 of 1975.

COUNSEL

James M. Keller, Ellwood City, for appellant.

Thomas M. Piccione, Assistant District Attorney, New Castle, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 253 Pa. Super. Page 561]

Appellant was convicted of robbery.*fn1 On this appeal he contends that the trial judge erred in ruling that as a matter of law, the lower court had jurisdiction of the crime. We affirm.*fn2

The Commonwealth's evidence was to the following effect. On June 20, 1975, at about 2:00 a. m., George Anderson, a customer at a bar in New Castle, Lawrence County,

[ 253 Pa. Super. Page 562]

Pennsylvania, asked a barmaid to summon a taxicab to take him to Youngstown, Ohio. (Lawrence County borders on Ohio.) The barmaid did so, and told the dispatcher that the driver should come to the door to escort the passenger because he was carrying a lot of money. (During the evening Anderson had asked the barmaid to hold $500 for him until he was ready to go home.) The dispatcher called a cab driver named Edward Stephenson to go to the bar. Appellant, who was another cab driver and was in the dispatcher's office when the barmaid called, immediately called Stephenson and suggested that they meet and rob Anderson. Stephenson picked up Anderson in New Castle, and Anderson got in the front seat of the cab. En route to Youngstown the cab was passed by a blue Ford owned by appellant, which was flicking its lights on and off. Further on, while still in Pennsylvania, Stephenson stopped and picked up appellant, who was then hitchhiking. Appellant got into the back seat. The cab then proceeded on back roads of Pennsylvania and Ohio and finally stopped near a graveyard. During much of this journey Anderson had been asleep. While Stephenson pretended that his cab had a flat tire, appellant pulled Anderson from the cab, beat him up, and took approximately $96 from his person. Anderson was placed back in the cab and the journey continued on back roads until Anderson was finally let out at the crossroads of routes 422 and 551 in Pennsylvania. Appellant denied any participation in the crime and presented three alibi witnesses.

Although the charge was that the place where the robbery had been committed was Lawrence County, the evidence failed to establish that. Stephenson testified that when he and appellant had agreed to commit the robbery they were in Brookfield, Ohio, N.T. 91-92, and that from there they had pursued many different back roads, N.T. 91-97, until they reached an unidentified graveyard. Anderson testified that he had no idea where the robbery occurred. N.T. 24. A police officer testified that he drove Anderson through the back roads of Lawrence County the next day, and Anderson

[ 253 Pa. Super. Page 563]

    was unable to find the graveyard. N.T. 224-225. He also testified that "[a]t the initial interview at the barracks, he [Anderson] recalled being brought back into Pennsylvania -- he felt -- after the crime occurred,". N.T. 225.

Appellant first demurred to the evidence on the ground that the Commonwealth had failed to establish that the robbery had been committed within the court's jurisdiction. When the trial judge refused to grant the demurrer, appellant asked the judge to submit to the jury the question whether the robbery had been committed in Pennsylvania, so that the jury might decide whether the court had jurisdiction. The judge refused to grant the request, ...


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