No. 191 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, No. 78-05-1544-1550.
Before Cercone, P.j., Watkins and Lipez, JJ. Lipez, J. concurs in the result.
Judgment of sentence affirmed on the able opinion of Judge Durham of the court below, a copy of which is attached hereto.
Lipez. J. concurs in the result.
IN THE COMMON PLEAS COURT OF PHILADELPHIA COUNTY
COMMONWEALTH V. LEAVEARNE MILLER
CRIMINAL TRIAL DIVISION MAY TERM, 1978 NOS. 1545-1550
The defendant, Leavearne Miller, was indicted on Bills of Information No. 1544, charging carrying firearms on a public street and without a license, No. 1545, charging simple and aggravated assault; No. 1546, charging criminal conspiracy; Nos. 1547 and 1548, charging robbery; No. 1549, charging possession of an instrument of crime generally, possession of an instrument of crime, weapon, and possession of a prohibited offensive weapon; and No. 1550, charging recklessly endangering another person and terroristic threats.
Argument on a motion to sever the defendant's case from his co-defendants' cases was heard before the Honorable William M. Marutani on June 27, 1978. That motion was denied. A motion to suppress the identification of the defendant was heard by this Court on October 23 and 24, 1978 and was also denied. The defendant, along with co-defendants Larry Fields and Nathaniel Turner, was tried before this Court, sitting without a jury, on October 27 and 30, 1978. The Court sustained a demurrer on Bill No. 1544, charging carrying firearms on the public streets and without a license. The Court found the defendant guilty on all other Bills. A presentence and psychiatric report were ordered. Post trial motions were filed, and the Court heard argument on said motions on January 23, 1979 and denied them. The defendant was sentenced to not less than eleven and one-half months nor more than twenty-three months on Bill Nos. 1545, 1547 and 1548 to run concurrently. On Bill No. 1546, the defendant was sentenced to five years probation to run consecutively to the sentences on Bill Nos. 1545, 1547 and 1548. Sentence on the other Bills was suspended.
The following facts were established at trial:
On May 8, 1978, sometime between 1:30 and 2:00 P.M., Esther and Benjamin Gelman were working in their grocery store, located at 25th and Master Streets. Esther Gelman was standing by the cash register in the front of the store. A young man came in, walked up and down the aisles locking around, and then left. He appeared to be carrying a gun. (N.T. 34,41). A few minutes later, three men, identified by Mrs. Gelman as Nathaniel Turner, Leavearne Miller and Larry Fields, entered the store. Turner, who was holding a gun, approached Mrs. Gelman and told her to lie down on the floor. When she didn't move fast enough, Turner pushed her down with his foot and she struck her side against a cigarette rack. (N.T. 35-36). Turner attempted to open the cash register, and when he could not open it, he directed Mrs. Gelman to open it. As she stood up, she saw Leavearne Miller with her husband in the back of the store. Willer was pointing a shotgun at Mr. Celman and telling him to lie down on the floor. (N.T/. 37-38). The third man, harry Fledds, was sitting on a chair in the store, watching the door. (N.T. 38).
In the meantime, Mrs. Gelman had managed to push a silent alarm. Turner took the money out of the register and placed it into a yellow plastic shoe bag. (N.T. 43). He warned the others that an alarm has been sounded, and they all ran out of the store. The fourth man, who had walked into the store and looked around prior to the robbery, was standing outside the store, and he also ran away. (N.T. 41).
Officer Anthony Morina, Badge No. 5704, arrived at the scene of the crime almost immediately thereafter. Esther Gelman told him that she was held up by three Negro males and she gave a quick description of them which he broadcasted over police radio. Officer John Clark, Badge No. 4636, was on mounted patrol at the time and located near the 2500 block of Girard Avenue, which was two blocks from the scene of the robbery. After Officer Clark hear the description of the suspects over the radio, he observed the defendant, Nathaniel Turner, who fit the description of one of the robbery suspects, running toward a car parked in a gas station lot at 26th Street and Girard Avenue. Turner got into the car, which already had three passengers, and the car headed East on Girard Avenue. Clark pursued the vehicle, which turned right on 26th Street. The vehicle then began to back up at a high ...