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COMMONWEALTH PENNSYLVANIA v. TIMOTHY D. CAIN (12/14/79)

filed: December 14, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
TIMOTHY D. CAIN, APPELLANT



No. 3048 October Term, 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division Nos. 1166-1171 of 1977.

COUNSEL

Mitchell Lipschutz, Philadelphia, for appellant.

Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a dissenting opinion.

Author: Cavanaugh

[ 272 Pa. Super. Page 583]

The appellant was convicted of aggravated assault, criminal conspiracy, possession of an instrument of crime and robbery after a four day trial before GUARINO, J. and a jury. His motions for new trial and arrest of judgment were denied and he appeals from the judgment of sentence.

Reviewing the evidence in the light most favorable to the Commonwealth, the following are the facts. On Saturday, July 30, 1977, appellant who was nineteen years old at the time, came into a small grocery store owned and operated by Gomito Gomez of Philadelphia, Pennsylvania. The storekeeper was not sure of the time although he believed it to be around 5 o'clock p. m. Appellant ostensibly wanted to buy potato chips and a soft drink. Shortly thereafter, a second man entered the store. When Mr. Gomez opened the cash register to complete the transaction with appellant, the

[ 272 Pa. Super. Page 584]

    second man pulled a gun and announced a holdup. Gomez was forced to lie on the floor and appellant stood over him with his foot on his head. The other man then removed cash from the cash register. Appellant did not display a gun. The armed man took Gomez's key and locked the front door of the store, and also threatened to kill Gomez if he kept looking up.

Appellant subsequently grabbed Gomez around the neck and both assailants took him to the second floor where he maintained a small office and living quarters. Gomez was again forced to lie on the floor while appellant placed his foot on his head. The man with the gun forced open a drawer and removed cash and a watch. Gomez was then pushed into a closet and was told he would be shot if he left. He heard the two men walking around and remained in the closet about twenty minutes until it was quiet. He then left the closet and called the police who responded shortly thereafter.

About $150.00 and a watch were taken from Gomez during the incident.

Gomez did not again see appellant (whose identity he did not know at the time of the crime) until September 7, 1977, when he went to a Gino's restaurant located about five or six blocks from his grocery store. On entering the restaurant he observed appellant working there and recognized him as his assailant. As soon as Gomez left Gino's he went to the police station and told the police that he had located one of the men involved in the crime at his store. The police accompanied Gomez to Gino's and appellant was arrested.

At trial appellant denied having anything to do with the crime and introduced his time card from Gino's (where he was employed on the date of the crime) indicating that he punched into Gino's at 4:59 p. m. on July 30, 1977, and clocked out at 1:24 a. m., July 31. Appellant testified that he never left the store from the time he punched in until he was finished for the evening.

The assistant manager of Gino's on July 30 and 31, 1977, testified he was on duty during the entire period of time

[ 272 Pa. Super. Page 585]

    that appellant worked on July 30 and 31, 1977, and that appellant did not leave the restaurant from the time he punched in until he left the following morning.

The manager of Gino's where appellant worked also testified that appellant was in the restaurant from the time he punched in at 4:59 p. m. until the manager left at about 6:00 p. m.

Appellant first contends that the court below erred in its charge to the jury concerning his alibi. In its charge the court stated:

"The defendant's alibi evidence that he was not present at the scene of the crime may in and of itself work an acquittal, or it, together with other evidence, may be sufficient to raise a ...


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