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COMMONWEALTH PENNSYLVANIA v. LARRY OATES (08/31/79)

filed: August 31, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
LARRY OATES, APPELLANT



No. 77 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division in No. 1122(1) C Term, 1974.

COUNSEL

R. Kerry Kalmbach, Assistant Public Defender, West Chester, for appellant.

Joan D. Lasensky, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wieand

[ 269 Pa. Super. Page 160]

At 10:15 a. m. on August 9, 1974, the body of Elaine Kurtz was found in the doorway of the beauty supply shop which she owned in Coatesville. She had been stabbed three times; a blood-stained knife was found beside her body. Witnesses said that a blond man wearing a dungaree jacket and blue jeans had been seen running from the store. Later that day, appellant, Larry Oates, was apprehended in the home of his aunt and uncle, where he was found hiding in the rafters. A pair of damp, freshly laundered blue jeans and a dungaree jacket were found hanging in the home.

At trial, Oates was identified by one of the witnesses as the man who had fled the murder scene. The weapon found at the store was identified by Ella Marie Herrewyn, with whom Oates was staying prior to the victim's death. Her testimony revealed further that on the morning of August 9, 1974, she had accompanied Oates to Coatesville, where she parted company with him in the vicinity of the victim's store. One half hour later -- at 10:30 a. m. -- Oates reappeared with a dark stain on his jeans and blood on his hand. He displayed some blood-stained money to Herrewyn, stating that he had stabbed "a girl in a wig shop" and taken the money.

Oates was convicted of first degree murder and robbery. In this appeal, he raises seven allegations of error. Finding

[ 269 Pa. Super. Page 161]

    them all to be meritless, we will affirm the judgment of sentence.

Appellant's first argument is that the Commonwealth's evidence was insufficient to show that the killing occurred during the course of a robbery. There is no merit in this argument. In addition to appellant's display of blood-stained money to Ella Marie Herrewyn and his statement that he had taken the money, the Commonwealth proved that the decedent's cash register was empty immediately following the killing. It also offered testimony from the decedent's business partner that every night for ten years the business had left the sum of $30 in the cash register with which to make change at the start of business on the following day. This evidence was sufficient to support a finding that the killing had occurred during the course of a robbery. See: Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978).

Appellant also argues that the trial court erred in allowing the Commonwealth to amend the indictment prior to trial and again during trial. This was not error. Pa.R.Crim.P. 220 allows an indictment to be amended where there is a defect in the description of the offense, provided the indictment as amended does not charge an additional or different offense. Commonwealth v. Jones, 250 Pa. Super. 471, 378 A.2d 1245 (1977). The amendments here, which added: "in the course of committing a theft" and "inflict serious bodily injury upon another," merely clarified the charge already contained in the indictment, i. e. robbery. Appellant was fully aware of this charge and had, in fact, previously received a bill of particulars from the Commonwealth. Therefore, he was not prejudiced by the several amendments. ...


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