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COMMONWEALTH PENNSYLVANIA v. FLOYD WILSON (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
FLOYD WILSON, APPELLANT



No. 1893 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, at No. 5122 of 1975.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Chester, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman and Spaeth, JJ., dissent: Commonwealth v. Shaffer, Author: Per Curiam

[ 257 Pa. Super. Page 330]

OPINION

This is an appeal from the judgment of sentence of the Court of Common Pleas of Delaware County, Criminal Division, by the defendant-appellant, Floyd Wilson, after conviction of robbery and related offenses; and from the denial of post-trial motions.

The facts are as follows: At approximately 8:45 p. m., on March 19, 1975, the defendant entered the pharmacy owned by the victim and asked for a pack of cigarettes. He then

[ 257 Pa. Super. Page 331]

    produced a .38 caliber revolver and demanded the victim's money. The defendant then struck the victim, the owner of the pharmacy, with the revolver, took a sum of money from the cash register, and, along with another person who had entered, the store, forced the victim into a closet, ripped out the telephone and left. The above facts were testified to by the victim, Bernard Gordon, who was the Commonwealth's only witness. The defendant testified in his own behalf and denied any participation in the robbery.

The defendant was seventeen at the time of the incident and was charged in a juvenile petition which was certified to the adult court on June 12, 1975. He was indicted for robbery, aggravated assault, recklessly endangering another, commission of a crime with a firearm and conspiracy. Trial was commenced on March 19, 1976 before Judge Diggins of the court below. During the trial reference was made by a witness to certain "mug shots" of the defendants. Motions were made for a mistrial on behalf of the defendant and co-defendant. However, after conference in chambers, the co-defendant pressed his motion but the defendant expressed a desire to proceed to trial with the impanelled jury. The trial judge granted the co-defendant's motion for a mistrial and when the defendant withdrew his motion for a mistrial, granted, it sua sponte for reasons of manifest necessity.

On April 19, 1976, the defendant filed an application to dismiss under Rule 1100 of Pennsylvania Rules of Criminal Procedure and the next day filed a Writ of Habeas Corpus which were both heard on May 16, 1976 and dismissed.

The defendant has raised only one issue in his appeal, as follows: "Did the declaration of a mistrial sua sponte by the lower court violate appellant's Fifth Amendment ...


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