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COMMONWEALTH PENNSYLVANIA v. MICHAEL JOHNSTON (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL JOHNSTON, APPELLANT



No. 372 MARCH TERM, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, of Dauphin County at Nos. 59, 137 and 192 Criminal Division 1975.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

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

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

Author: Van Der Voort

[ 258 Pa. Super. Page 432]

The appellant, Michael Johnston, was convicted, after a jury trial, of charges of aggravated assault, robbery and conspiracy. In the instant direct appeal*fn1 to our Court, he raises several allegations of error.

He first contends that the evidence was insufficient as a matter of law to sustain the convictions. In reviewing such a claim, we must determine whether, accepting as true all of the evidence, regardless of whether it is direct or circumstantial, upon which, if believed, the fact-finder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Reeves, 237 Pa. Super. 443, 352 A.2d 167 (1975).

When considered in light of the foregoing, the record shows that on the afternoon of December 30, 1974, an undercover narcotics agent of the Pennsylvania Bureau of Drug Control, Frank Brinser, was driving around Harrisburg, with the objective of trying to purchase controlled substances. He was accompanied by a police informant named George Waters. As they passed the Three Lucky Dots Bar, Waters observed the appellant, Michael Johnston, standing in front of the bar. Waters was acquainted with the appellant and knew him to be capable of supplying

[ 258 Pa. Super. Page 433]

    drugs. Brinser stopped the vehicle and Waters asked Johnston to approach the vehicle for conversation. Waters inquired about drugs and the appellant stated that heroin was available. Johnston then went inside the bar, ostensibly to determine the quantity available. Brinser moved the vehicle to a parking spot across the street from the bar. After a short time, the appellant came out of the bar and joined Brinser and Waters in their vehicle. He informed the officer and informant that he would be able to arrange their purchase of a specified amount of heroin. During this conversation, the appellant pointed out another individual, standing on the sidewalk approximately twenty to thirty yards from the vehicle, as the person from whom the actual drug purchase was to be made. That individual was later identified as one Jeffrey Clark. Johnston caught Clark's attention to attract him to the vehicle, but Clark shook his head in a negative manner and then walked into the bar. The appellant then exited the vehicle, followed Clark into the bar, and a short time later returned to announce that the purchase would have to be made inside the bar, and that Brinser could join him in the bar.

Brinser approached the bar with the appellant. While walking, Brinser stopped, removed some currency from his sock, counted out $150.00 for the drug purchase, and placed the remainder of his money back in his sock. One Howard Cobb was approaching the bar from the other side of the street and he entered the bar after Brinser and the appellant.

Once inside the bar, the appellant and Brinser joined Jeffrey Clark in the bathroom. The appellant was still holding the door partially opened and Brinser noticed Cobb lurking just outside the door. Nobody said anything about the drug purchase and Brinser asked Johnston who Cobb was. Johnston simply said, "Watch for that dude." The door was partly opened at that point and Cobb came in while the appellant started to "slide out" of the doorway. Cobb immediately approached the agent, pushed him and demanded the money. Johnston was still standing outside the

[ 258 Pa. Super. Page 434]

    partially opened bathroom door and Clark was still in the bathroom. Brinser refused to give up his money and said he was going to deal through the appellant. At this point Cobb suddenly attacked Brinser, punching him savagely in the face several times, while demanding the money. Brinser bent over to shield himself and held out the $150.00, which either Cobb or the appellant took. After a pause of a couple of seconds, Cobb again demanded money. Brinser saw the appellant and another man now inside the bathroom, effectively blocking the door. Cobb continued to demand money while raining more blows upon the officer. During this time, one of the individuals by the door, either Johnston or the other person, said, "You better give him all the money or we will kill you." The officer, fearing for his life, pulled out a hidden pistol and fired ...


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