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COMMONWEALTH PENNSYLVANIA v. SAMUEL COLEY (01/28/80)

submitted: January 28, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL COLEY, APPELLANT



No. 71 Special Transfer Docket APPEAL FROM THE JUDGMENT OF SENTENCE OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY CRIMINAL TRIAL DIVISION - AT NO. 1599, NOVEMBER TERM, 1975, AS ENTERED JUNE 15, 1976.

COUNSEL

Jack H. Land, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, O'Brien and Cirillo, JJ.*fn*

Author: Cirillo

[ 275 Pa. Super. Page 366]

On October 10, 1975, appellant was arrested and charged with murder, robbery, criminal conspiracy, and burglary. Prior to trial, appellant's motion to suppress a written statement was granted. On March 8, 1976, appellant's jury trial began, and the court granted appellant's motion for a

[ 275 Pa. Super. Page 367]

    directed verdict on the burglary charge. Three days later, the jury returned a verdict of guilty of murder of the second degree, conspiracy, and robbery. Post-verdict motions were denied, and appellant was sentenced to three concurrent terms of imprisonment of life imprisonment on the murder conviction, ten to twenty years on the robbery conviction, and three to six years on the criminal conspiracy conviction. This appeal followed.

Appellant raises five issues in this appeal: a challenge to the sufficiency of the evidence, an unnecessary delay between arrest and arraignment, the use of a suggestive one-on-one identification, the prosecution's use of perjured testimony, and a challenge of the ineffective assistance of counsel. For the reasons which follow, we reject appellant's contentions.

First, appellant contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We cannot agree. Viewing the evidence in a light most favorable to the prosecution and accepting as true the evidence and all the inferences from which, if believed, could support the jury's verdict, we conclude that the evidence is sufficient to support the jury's verdict of guilty beyond a reasonable doubt.

The basic facts are not in dispute. On April 26, 1975, a buzzer heard upstairs in the victim's apartment indicated that someone was downstairs in the victim's store. The hardware store and the apartment were owned by the victim and his wife, Stanley and Selma Pollack. At the time the buzzer sounded, the victim went downstairs to the store, which before that time had been empty. Then appellant, the co-defendant, and the victim's sister-in-law, Claire Holzman, entered the door which led to the first floor of the store. Appellant asked the victim for an item and the two of them went into the basement area, an area which was also used for storage and as a sales area. While the victim was downstairs in the basement, Claire Holzman talked with appellant's co-defendant who had also asked to see an item in the store. At that time, Selma Pollack came downstairs

[ 275 Pa. Super. Page 368]

    and led the co-defendant, Charles Mobley, to the rear of the store. Charles Mobley then went to the basement doorway, told Selma Pollack that he had forgotten his wallet, and left the store. Mobley never returned to the store. A few minutes later, appellant came upstairs from the basement alone and then left the store. Then the victim came upstairs a minute later by himself and was covered with blood. The victim mumbled something about money and his wallet which was missing from his person at that time. The victim was then taken to a hospital where he became unconscious and died less than two weeks later, having never ...


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