No. 465 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County as of December Term, 1974, Nos. 573/576.
John Paul Curran, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, with her F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Hoffman and Price, JJ., concur in the result. Spaeth, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 292]
This is an appeal from the judgment of sentence of the Court of Common Pleas, of Philadelphia County, Trial Division, Criminal Section, by the defendant-appellant, Joseph Alvin, after conviction in a non-jury trial of robbery, possession of instruments of crime, carrying a firearm on public streets and property, unlawfully carrying a firearm without a license in a vehicle and criminal conspiracy; and from the denial of post-trial motions.
[ 257 Pa. Super. Page 293]
The facts are as follows: Mr. and Mrs. Charles Sassaman are an elderly, crippled couple who operated a neighborhood variety store at 2701 East Orleans Street, Philadelphia. The defendant walked into the store at about 3:30 P.M. on November 9, 1974. He was carrying a sawed-off shot gun. Pointing the gun at Mrs. Sassaman, he announced "This is a hold-up" and knocked the cash register to the floor. He grabbed the bills from the cash register drawer. The woman began to scream. Sergeant Gerald Lang, a Philadelphia policeman on his way home from work, responded to her cries. As he entered the store, the defendant pointed the shot gun at him and forced him against the door. The defendant then fled in a dark, blue Comet automobile driven by another man who had been waiting outside. Drawing his service revolver, the officer shouted at them to stop. When they failed to stop, he fired, apparently puncturing one of the car's tires. He wrote down the license number of the car and relayed a description of the car and the defendants to the police radio.
The car careened down the street and nearly side-swiped the car of Charles Urbanski who was driving with his young son. The car jumped the curb and stopped and the men fled on foot.
Several days after the robbery another officer stopped the car driven by the defendant, which answered the description of the car used in the robbery. The officer knew the driver, Joseph Alvin. He denied his identity and refused to stop the car and get out when requested. He was placed under arrest. The car was owned by a Linda Foran who said she loaned it to the defendant.
The defendant filed timely motions to suppress the physical evidence that had been seized and was to be introduced at trial as well as certain identification testimony. These were heard before McDermott, J. and denied.
The defendant waived his right to a jury trial on July 9, 1975 and was tried non-jury by DiBona, J. He was found guilty of robbery, possession of instruments of crime, carrying a firearm on public streets and property, unlawfully ...