No. 314 April Term, 1979 Appeal from Order of the Court of Common Pleas of Mercer County at No. 292 Criminal, 1978, Criminal Division.
Robert G. Kochems, Assistant Public Defender, Mercer, for appellant.
Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Price, Hester and Cavanaugh, JJ.
[ 274 Pa. Super. Page 619]
Appellant has been convicted of robbery and conspiracy and has received a three to ten year sentence. We are asked to decide: (1) whether the Court erred in not granting appellant's motion for binding instructions; and whether it was error not to find the verdict against the weight of the evidence; (2) whether the court should have granted the language of certain of appellant's points for charge on the defense of duress; and (3) whether the sentence is excessive in length.
Leroy Wiggins was tried before a jury in Mercer County. After the guilty verdict on October 10, 1978, the court denied appellant's motions for a new trial and in arrest of judgment. On March 6, 1979, defendant was given concurrent three to ten year sentences on the two offenses.
Richard Kurtz, age 16, was in charge of the Falcon gas station in Hermitage, Mercer County, at about noon on July 15, 1978. Appellant drove onto the premises with a companion. He got out of the car and engaged Kurtz in conversation, left the scene and returned again, at which time he said to the victim "You see my buddy out there he's got a shotgun pointed at you". The victim looked, saw the confederate in the car, and found this to be so. Appellant demanded money and when Kurtz was slow in complying, Wiggins picked up a knife and put it towards the victim's side. Kurtz gave him $386 cash which was on his person and the assailants drove away. Kurtz and his father had seen the same two persons when they came to the gas station several days earlier. At that time they did not make a purchase and their conduct aroused the suspicion of the senior Kurtz to such an extent that he recorded their Ohio
[ 274 Pa. Super. Page 620]
temporary license tag number (appellant was a resident of Youngstown, Ohio). On the evening before the robbery, when another attendant was on duty, the two had come to the station again. As before, they made no purchase. Appellant and his companion were picked up by police on a nearby highway after a report of the robbery and a description of the vehicle had been made. Police found a loaded shotgun and $380 in cash in the vehicle.
At trial the court admitted into evidence a handwritten statement which appellant's companion furnished to him which said "Mr. Wiggins did not do the robbery. I Joe Mays assault Wiggins to do as he was toll".*fn1 During the course of his testimony appellant stated that Mays pulled the shotgun out and pointed it. He also testified that Mays threatened him with the shotgun which terrified him but did not further elaborate on the details of the alleged duress.
Appellant first contends that there is insufficient evidence to support the verdict or, in the alternative, that the verdict is against the weight of the evidence. We have reviewed the evidence in light of the applicable standards. See Com. v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Com. v. Ponder, 260 Pa. Super. 225, 393 A.2d 1235 (1978); Com. v. Portalatin, 223 Pa. Super. 33, 297 A.2d 144 (1972); Com. v. Hayes, 205 Pa. Super. 338, 209 A.2d 38 (1965); Com. v. Harbaugh, 197 Pa. Super. 587, 179 A.2d 656 (1962); Com. v. Coyle, 190 Pa. Super. 509, 154 A.2d 412 (1959). As noted above, the evidence adduced at trial described a robbery of cash from the person of the victim at knifepoint while appellant's confederate trained a shotgun on the victim, followed by the arrest of appellant and his co-actor shortly thereafter in a ...