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OSWALDO GONZALES (06/01/79)

decided: June 1, 1979.

IN THE INTEREST OF OSWALDO GONZALES, A JUVENILE. APPEAL OF COMMONWEALTH OF PENNSYLVANIA


No. 1080 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Trial Division, Juvenile Division of Philadelphia County, as of January Sessions, 1978, Petition No. 670, Sustaining Demurrers and Discharging Appellee.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, submitted a brief on behalf of appellant.

Steven H. Goldblatt, Deputy District Attorney for Law, Philadelphia, for Commonwealth, appellee.

Van der Voort, Hester and Montgomery, JJ.

Author: Hester

[ 266 Pa. Super. Page 469]

The Commonwealth appeals from an Order sustaining appellee's demurrer to charges of assault, robbery and conspiracy.

[ 266 Pa. Super. Page 470]

The only evidence produced at trial was the testimony of a police officer; the victim was not produced and thus did not testify.

The officer testified that at approximately 10:30 a. m. on January 29, 1978, while cruising in a marked patrol wagon with his partner, he observed two young men accosting an elderly lady. One forced the woman to the ground and then repeatedly pushed her back to the ground when she attempted to get up. The other man (appellee) went through her coat pockets while she was held to the ground, after about 30 seconds, the men spotted the police wagon and fled. They were apprehended a short distance away.

The court concluded that the officer's testimony was not sufficient to establish all of the elements of any of the crimes charged.

On our review of a demurrer, we evaluate the evidence in the light most favorable to the Commonwealth, together with all the inferences therefrom, to determine whether it was sufficient to submit the issue to the jury. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976).

We are of the opinion that the testimony was sufficient to allow this case to go to the jury on all three counts.

As to robbery, clearly the testimony established that in the cause of committing a theft, appellee and his cohort put their victim in fear of serious bodily injury. (See 18 Pa.C.S.A. ยง 3701(1)(ii). The lower court was troubled by the fact that the victim did not testify as to her own state of mind in the face of the attack. Such subjective testimony is not necessary to sustain a robbery conviction. See, Commonwealth v. Mays, 248 Pa. Super. 318, 375 A.2d 116 (1977). Clearly ...


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