No. 66 MARCH TERM, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Dauphin County, at No. 2423 Criminal Division, 1974.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
Peter J. Anderson, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 10]
Appeal is taken from judgment rendered following jury trial and adjudication of guilty of criminal conspiracy. "Crimes Code", Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa.C.S. § 903. Posttrial motions were filed and denied. An
[ 262 Pa. Super. Page 11]
appeal was timely filed; however, on September 24, 1976, we entered a judgment of non pros for appellant's having failed to proceed. By Order dated April 18, 1977, we removed the judgment of non pros following appellant's application therefor. We now consider appellant's direct appeal.
Testimony established that on September 6, 1974, three masked men entered Abe's Tavern in Harrisburg and at gun point removed the money from the cash register and robbed the bartender and eight or ten patrons of their money and sundry personal items. Following police investigation, these three were identified and two of them arrested, with the third awaiting extradition to Pennsylvania from another jurisdiction. One of those arrested was Frank Martin, who had been charged with the substantive crime and had pled guilty. Martin testified for the Commonwealth that he and his cohorts had used appellant's automobile for transportation before and after the robbery. He further stated that one of his conspirators, Reinberry, infra, obtained a rifle from appellant's apartment, but that he did not see appellant hand over the weapon or in any way discuss the robbery. The second of the three conspirators, Donald Reinberry, a/k/a Massey, was arrested, pled guilty to the instant robbery, and testified for the Commonwealth that he knew appellant and had conversed with him about desirable places to rob in Harrisburg. Appellant gave counsel as to the most likely location in an effort to enlarge Reinberry's knowledge of the area, and promised to provide weapons. A number of discussions of similar content were held in Brown's apartment, at which Earl Box, the third robber of Abe's Tavern and the one awaiting extradition at time of trial, was in attendance. One of these meetings several days prior to September 6, supra, culminated in Brown's lending a pistol and rifle to be used for a robbery of a bar known as John's. These weapons were returned to Brown on September 5. Then on the sixth, Reinberry and Box visited Brown, who suggested robbery of a beer distributorship, and who loaned his car for the venture. With the car, Reinberry and Box picked up Martin, circled back to Brown's apartment, and
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Reinberry went inside to borrow the rifle and pistol from Brown, who again advised robbery of a certain beer distributor because of the likelihood of a large amount of cash there. Having driven to the beer distributorship, the trio noticed a police car parked there, and went instead to Abe's Tavern where they completed their scheme. The next day, Reinberry gave $25.00 to Brown from the proceeds of the robbery. A few days later he returned the weapons. Appellant testified in defense to the effect that he had never had any discussions with Reinberry or Martin, that neither had been in his apartment, and that he gave neither advice nor weapons nor an auto to these individuals.
Appellant proposed the following point for charge of the jury:
The elements of the crime of conspiracy as charged in this case are that there was an agreement between the defendant, Jerome Brown, and other persons to commit robbery at Abe's Tavern and that some act in furtherance of that agreement was carried out. Unless you find, beyond a reasonable doubt ...