No. 914 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Phila. County at No. 2005, August Sess. 1977.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ.
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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 (Supp.1978-79). Appellant makes two arguments: (1) that the act -- a sudden snatching of a packet of bills from a bank teller's hand -- did not amount to robbery under 18 Pa.C.S.A. § 3701(a)(1)(v), which provides that a person is guilty of robbery if he "physically takes or removes property from the person of another by force however slight"; and (2) that the evidence was insufficient to prove that he was the person who snatched the bills.
[ 270 Pa. Super. Page 61]
The issue of statutory construction raised by the first argument has been waived for failure to follow Pa.R.Crim.P. 1123, even as it has been most permissively interpreted. In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), the Supreme Court held that post-verdict motions will be considered waived where not presented to the lower court in writing. Later, however, the Court held that even though no written post-verdict motion was presented to the lower court, an issue will not be considered waived if it was raised in a brief and the lower court considered the issue.*fn1 Commonwealth v. Twiggs, 485 Pa. 481, 402 A.2d 1374 (1979) (concurring opinion by Mr. Chief Justice EAGEN, with Justices O'BRIEN, FLAHERTY and MANDERINO in agreement that there is no waiver). Here, there is no indication in the docket that any written post-verdict motion was ever filed. It is clear from the transcript that a brief was filed and that the lower court considered the issues raised in the brief, but since the brief is not in the record we have no way of knowing what those issues were. All the indications are that the only issue raised in the brief was whether the evidence was sufficient to convict appellant. Early in the proceedings, on a motion to quash, appellant raised the specific issue of statutory construction he now seeks to raise, but the issue was not discussed at trial or afterwards, and the lower court did not address the issue in its opinion.
The evidence at trial was as follows.
On August 4, 1977, at 1:45 p. m., Marilyn Mark, a bank teller, was at work at a branch of the Central Penn National Bank, counting ten-dollar bills. She had just put a rubber band around a packet of 50 ten-dollar bills when someone snatched the packet out of her hand. The robber*fn2 immediately
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fled from the bank, although he was hindered for a moment because he left through the "in" door and it took him a few seconds to open it in the correct direction.*fn3 Ms. Mark testified that the robber was clean-shaven with a medium Afro hairstyle. There was no evidence, however, that she later identified appellant as the robber. She did not identify him at trial.
The bank manager, Anthony Martello, heard Ms. Mark cry, "I've been robbed." He looked up and saw someone trying to get out the "in" door; the person was black, about six feet tall, 170 to 180 pounds, light complected with short cropped hair, and wearing a green shirt. Mr. Martello gave chase. He saw the robber cross the street, run half a block, and turn into St. Agnes Hospital. Mr. Martello, and a policeman he had encountered, followed, but they lost ...