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COMMONWEALTH PENNSYLVANIA v. LARRY ARTHUR (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY ARTHUR, APPELLANT



No. 388 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, imposed on Bill of Indictment Nos. 562 and 563 of 1975.

COUNSEL

Larry E. Stone, Assistant Public Defender, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ.

Author: Hester

[ 257 Pa. Super. Page 505]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County, Criminal Division, by the appellant-defendant, Larry Arthur, following a

[ 257 Pa. Super. Page 506]

    conviction by a jury of aggravated robbery; and from the denial of post-trial motions.

The facts relevant to the sole issue on appeal are as follows:

On May 13, 1973, a robbery occurred at the Senate Theater in Harrisburg. The receipts were taken at gunpoint by two men, one of whom was armed. King Thompson was arrested in connection with this incident at which time he implicated the appellant as his accomplice. Thompson later pleaded guilty to this robbery and received a sentence of five to fifteen years.

Thompson testified at appellant's trial as a defense witness. He stated that the appellant had not been with him on the night of the robbery, but he couldn't remember who had been his accomplice. Thompson also denied that he had reported appellant's involvement to the police although he admitted he disliked him. The Commonwealth produced two identification witnesses, the manager and an employee. The manager, Christine Dubs, testified that her wallet was taken during the robbery and that she was sure appellant Larry Arthur was the man with the gun, whom she had kept her eye on. She stated that she was sure because "you just never forget somebody that is going to kill you, who you think is going to kill you." The cashier, Theodore Homziak, although he was told to lie facedown on the floor, testified that he also was looking right at the man with the gun, because, "if I'm going to be held up, I might as well get a good look at him." He stated he was certain appellant was the man with the gun because he had looked directly at him.

The appellant produced an alibi witness, Gloria Alton, his common-law wife, who testified that appellant was baby-sitting while she ...


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