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COMMONWEALTH PENNSYLVANIA v. WILLIAM E. HURD (07/12/79)

decided: July 12, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM E. HURD, JR., APPELLANT



No. 199 March Term 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Union County, Criminal No. 91-1975.

COUNSEL

Ambrose R. Campana, Williamsport, for appellant.

Graham C. Showalter, District Attorney, Lewisburg, for Commonwealth, appellee.

Spaeth, Hester and Montgomery, JJ.

Author: Spaeth

[ 268 Pa. Super. Page 27]

This is an appeal from judgment of sentence on conviction of robbery, the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 3701.

The Commonwealth's evidence was as follows. On April 9, 1975, Cindy Green, 17, was at work in a women's clothing store in Lewisburg, Pa. A man came in and, after staying behind a rack until another customer left, approached the counter and told Green to open the drawer. When she refused, he slammed his fist on the counter and told her, "Bitch, open the drawer." His right hand was in his pocket and something in the pocket was pointed at Green; she thought it might be a gun, so she opened the drawer. The man took money and left. Two days later, appellant was arrested on a warrant and charged with the robbery. Green identified him at a lineup (which will be discussed in more detail) and at the jury trial. Appellant was convicted, and this appeal followed.

Appellant first argues that the arrest warrant was not based upon probable cause, and therefore that the ensuing lineup identification was the fruit of an illegality and should have been suppressed. The affidavit upon which the

[ 268 Pa. Super. Page 28]

    warrant issued contained various assertions, a number of which did not contribute to the probable cause question.*fn1 Disregarding those, the pertinent allegations are that a black Cadillac hearse, known to police as appellant's, was seen parked close to the shop at the time of the robbery and leaving town shortly afterwards; that the affiant, who knew appellant from a previous encounter, thought appellant matched the composite drawing of the robber made at Green's description; and that a second person, a state trooper who had seen appellant previously, thought so too. In Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975), the Supreme Court found probable cause where an officer made an arrest based on the victim's description and on his own and an informant's impression that the defendant looked like the person depicted in a composite drawing. Similarly, we hold here that the allegations in the affidavit stated probable cause to arrest appellant.*fn2

Appellant next argues that there was insufficient evidence to convict him of robbery because there was no evidence that Cindy Green was put in fear of serious bodily injury. The Crimes Code, in § 3701, provides:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury . . . .

Appellant asserts that no threats were made, and then proceeds to examine Green's testimony to see if it shows

[ 268 Pa. Super. Page 29]

    that she was in fear. Whether or not this plucky 17-year-old was put in fear,*fn3 appellant's statement that there were no threats is incorrect. To sustain a conviction under § 3701(a)(1)(ii), the Commonwealth need not prove a verbal utterance, but may show aggressive actions that threaten serious bodily injury. Commonwealth v. Scott, 246 Pa. Super. 58, 359 A.2d 809 (1977). It there is such a threat, it is irrelevant that the victim may not have taken the threat seriously. Commonwealth v. Mays, 248 Pa. Super. 318, 375 A.2d 116 (1977). Here there was sufficient evidence for the jury to have found that appellant threatened Green with what he intended her to believe was a gun.*fn4 Such a threat carries with it a threat of serious bodily injury.

Appellant next argues that Green's identification was so unreliable that the lower court should not have admitted it,*fn5 and should have granted his motion in arrest of judgment.*fn6 This identification evidence was as follows.

Green testified that she had watched appellant closely during the five minutes he was in the ...


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