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COMMONWEALTH PENNSYLVANIA v. JEFFREY CLARK (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JEFFREY CLARK, APPELLANT



No. 43 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at Nos. 138, 139, 140 Criminal Division 1975.

COUNSEL

Joshua D. Lock, Public Defender, Harrisburg, for appellant.

Marian E. MacIntyre, Second Assistant District Attorney, with her, LeRoy S. Zimmerman, District Attorney, Harrisburg, 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: Cercone

[ 256 Pa. Super. Page 99]

Following a jury trial appellant was found guilty of robbery,*fn1 aggravated assault*fn2 and conspiracy.*fn3 A sentence of ten to twenty years imprisonment was imposed on the robbery conviction. In addition, appellant received a five to ten year concurrent prison sentence on the aggravated assault indictment. No sentence was imposed on the conspiracy conviction other than a direction to pay the costs of prosecution. The sole issue on this appeal is whether the evidence is sufficient to sustain the verdicts.

It is fundamental that "[t]he test for the sufficiency of evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Bastone, 466 Pa. 548, 552, 353 A.2d 827, 829 (1976); Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977). See also Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).

The record, considered in accordance with the foregoing principles, establishes the following: In the afternoon of December 30, 1974, Frank Brinser, an undercover narcotics agent employed by the Bureau of Drug Control, and George Waters, a police informant, were "cruising" the uptown area of Harrisburg in search of narcotics. While driving past the Three Lucky Dots Bar, Waters observed one Michael Johnston*fn4 standing outside in front of the bar. Johnston was an acquaintance of Waters and known to Waters as an individual capable of obtaining drugs. After calling Johnston over

[ 256 Pa. Super. Page 100]

    to Brinser's vehicle, Waters soon turned the conversation to the subject of narcotics. Johnston indicated heroin could be purchased and went inside the bar to check the quantity available. In the meantime, agent Brinser and Waters moved the vehicle to a parking spot on the other side of the street directly across from the bar. Johnston emerged from the bar a few minutes later and joined Brinser and Waters in the vehicle where he informed them he would be able to obtain the desired amount of heroin. During the course of this conversation appellant, a black man, who is well over six feet tall and was attired in a white suit, appeared on the sidewalk some twenty to thirty yards from the vehicle and was identified by Johnston as the person from whom he was going to purchase the heroin. When Johnston attracted his attention, appellant responded by shaking his head in a negative manner and walked into the bar. Johnston then re-entered the bar in an attempt to persuade appellant to make the sale inside the vehicle. Shortly thereafter Johnston returned to the vehicle and reported that the transaction would have to be consummated inside the bar, but that agent Brinser could accompany him. While walking toward the bar Brinser stopped, bent down and removed a roll of bills from his sock, counted out $150.00 and placed the remainder back in his sock. At the same time, one Howard Cobb was on the other side of the street and also walking toward the bar. Cobb, apparently having observed Brinser's actions, followed the agent and Johnston into the bar.

Once inside the bar Johnston, agent Brinser and appellant met in the bathroom. Agent Brinser then glanced out the partially open door and observed Howard Cobb lurking outside the door. Cobb was the individual who was outside the bar when Brinser took the money from his sock. Brinser asked Johnston who Cobb was and Johnston warned him to "watch that dude." Immediately thereafter Johnston and Cobb switched places, that is, Cobb was now inside the bathroom and Johnston was just outside the door. Appellant, however, remained in the rear portion of the restroom. At this point, Cobb suddenly pushed agent Brinser against

[ 256 Pa. Super. Page 101]

    the wall and demanded his money. When Brinser refused, Cobb began beating him severely and grabbed the $150.00 out of the agent's hand. After a brief pause Cobb demanded more money and then resumed his assault. While trying to fend off Cobb's blows agent Brinser noticed that two individuals were still standing inside the bathroom door. Brinser recognized one of the men as Johnston, but was unable to identify the other individual. As Cobb continued his assault one of the two men standing inside the restroom door stated, "You better ...


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