No. 1617 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Chester County, Criminal Division at No. 009178
Donald A. Mancini, Assistant District Attorney, West Chester, for Commonwealth, appellant.
Anthony A. Raffo, Springfield, for appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 277 Pa. Super. Page 240]
On May 15, 1978, defendant-appellee, Steven M. Petrie, stood trial in Chester County on charges of robbery*fn1 and conspiracy.*fn2 The trial judge, President Judge Domenic T. Marrone, sitting without jury, sustained appellee's demurrer to the robbery charge and found Petrie not guilty of conspiracy.
[ 277 Pa. Super. Page 241]
The Commonwealth now appeals from the trial court's sustaining of Petrie's demurrer, arguing essentially that the lower court acted inconsistently when it allowed the conspiracy charge to go to verdict, but sustained a demurrer to the robbery charge.*fn3 After careful review, we find the Commonwealth's argument to be without merit, and we affirm the lower court.
In brief, the testimony of John Searle, the key witness for the prosecution, indicated that on January 3, 1978, Searle, Bruce Marrone, and appellee Petrie injected themselves with heroin and spent the day together driving around the city of Philadelphia while drinking more than two bottles of liquor. The trio jokingly discussed robbing someplace and, as a lark, they stopped at a toy store which Marrone entered and purchased two toy guns. Later the trio stopped at another store where Searle and Marrone bought two ski caps and two pairs of pantyhose.
Gradually, after joking about committing a robbery, the trio began to think about the idea in earnest. It was then agreed that Marrone and appellee would get the first $100.00 from the robbery to use toward their rent, and that whatever remained would be split three ways. Around 7:30 p. m., Searle, who was driving, spotted a grocery store, and Marrone suggested that they rob it. However, after Searle pulled into the parking lot, appellee refused to go into the store and remained in the car while the other two committed the robbery.
As noted above, appellee demurred to the charges and after hearing the foregoing account of events, the trial court sustained the demurrer on the robbery charge. The trial court ruled that since appellee did not participate in the robbery itself he could only be guilty of robbery if the
[ 277 Pa. Super. Page 242]
Commonwealth showed that appellee was an accomplice*fn4 to the robbery, which, under the facts of the instant case, would mean that appellee intentionally aided or agreed or attempted to aid in the planning or commission of the robbery. The trial court ruled that the testimony at trial, which was at times inconsistent, failed to prove appellee intended to aid in the robbery. As for the conspiracy charge, the trial court found defendant not ...