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COMMONWEALTH PENNSYLVANIA v. SIMON F. OSTOLAZA (06/29/79)

decided: June 29, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
SIMON F. OSTOLAZA, APPELLANT



No. 1072 October Term 1978, Appeal from Judgment of Sentence of Court of Common Pleas of Lancaster Co., Pa., No. 1381 of 1977.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Ronald L. Buckwalter, District Attorney, Lancaster, for Commonwealth, appellee.

Cercone, Spaeth and Lipez, JJ.

Author: Spaeth

[ 267 Pa. Super. Page 453]

Appellant was tried by a judge sitting without a jury and was convicted of robbery. Post-verdict motions were denied and appellant was sentenced to two to four years in prison. On this appeal appellant contends that the evidence was insufficient to sustain the conviction.

On July 16, 1977, at approximately 12:00 noon, the victim was standing at a counter in the Southern Market in Lancaster. She had taken out her wallet to pay the store clerk

[ 267 Pa. Super. Page 454]

    and was holding it open in her hand when appellant grabbed it. The victim refused to let go of the wallet and held onto it, screaming. Appellant finally wrenched it from her hands and ran out into the street with it.

In Commonwealth v. Steward, 263 Pa. Super. 191, 397 A.2d 812 (1979), this court stated: "In testing a sufficiency of evidence claim we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crimes of which he has been convicted." Id., 263 Pa. Super. at 199, 397 A.2d at 815-16.

The information filed against appellant charged him with robbery as defined under subsection (ii) of section 3701 of the Crimes Code, which provides that "[a] person is guilty of robbery if, in the course of committing a theft, he . . . threatens another with or intentionally puts him in fear of immediate serious bodily injury." 18 Pa.C.S. ยง 3701(a)(1)(ii). When past purse-snatching robbery cases are considered, it is clear that here the evidence, considered in accordance with the principles stated in Commonwealth v. Steward, supra, was insufficient to sustain the conviction.

In Commonwealth v. Farmer, 241 Pa. Super. 373, 361 A.2d 701 (1976), this court held the evidence sufficient to convict the defendant of robbery under subsection (ii) of section 3701 of the Crimes Code where the defendant and his co-defendant grabbed the victim's purse, punched her in the face, and ran away with the purse.*fn1 In Commonwealth v. Scott, 246 Pa. Super. 58, ...


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