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COMMONWEALTH PENNSYLVANIA v. DENNIS M. THOMAS (05/23/80)

filed: May 23, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
DENNIS M. THOMAS, APPELLANT



No. 2492 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 137-78.

COUNSEL

Arthur J. King, Assistant Public Defender, Norristown, for appellant.

John J. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Hester, Hoffman and Catania, JJ.*fn* Hoffman, J., files a concurring and dissenting opinion.

Author: Hester

[ 278 Pa. Super. Page 42]

Appellant Dennis M. Thomas was convicted with a co-defendant in a jury trial on charges of robbery, theft, receiving stolen property, simple assault, and criminal conspiracy.*fn1 Post trial motions were argued and denied and an aggregate sentence of two to five years imprisonment was imposed. This appeal followed, in which appellant posits three issues for our determination.

Facts adduced at trial established the following scenario of events. On the evening of December 23, 1977, the complainant Stephen Porter attended an auction in Gilbertsville, Pennsylvania, where he was successful in selling his automobile for the sum of $625.00. Following the auction, he began

[ 278 Pa. Super. Page 43]

    to search for a ride to his home in Glenside, about 55 miles east of Gilbertsville. He finally decided to hitchhike and was soon picked up on Route 73 by two men, a driver and a passenger in a Volkswagen, heading east. Porter climbed into the back seat and was informed that the two men were going to the "Wine Press", an establishment in nearby Limerick, Pennsylvania. After arriving at the Wine Press, Porter thanked the two men and resumed hitchhiking, but was soon again picked up by the same two men in the Volkswagen who offered to drive Porter to Collegeville. After travelling some distance, the driver turned the car down a dirt road onto State Game land where he parked the car and got out. Porter was ordered out of the car by both men and was hit in the jaw by the driver, whereupon the two men demanded all of Porter's money. As the passenger waved a club at Porter, the victim emptied his pockets onto the ground and fled into the woods, seeking aid at a nearby home. When he returned to the scene later that night with Limerick Township Police Officers, all of his money, about $635.00, was gone, as were the robbers.

A few hours later, Porter was shown an array of photographs at the Limerick police station and identified the appellant herein as the driver of the car. In addition, Porter chose the photograph of one Warren Hart and stated he looked like the passenger. Hart was arrested, but was shown later not to be involved in the incident. Hence, on December 27, 1977, Porter chose from another group of photographs the picture of co-defendant William Kocher. Kocher was then arrested, tried, and convicted along with appellant.

Appellant first asserts that he is entitled to a new trial because the verdicts were against the weight of the evidence. The grant of a new trial on the ground the verdict is against the weight of the evidence is committed to the sound discretion of the trial court. Commonwealth v. Chapman, 255 Pa. Super. 265, 386 A.2d 994 (1978); Commonwealth v. Thomas, 254 Pa. Super. 326, 385 A.2d 1362 (1978). Instantly, in addition to identification testimony, appellant

[ 278 Pa. Super. Page 44]

    was also linked to the crime by his Volkswagen. Porter testified that the car in which he rode bore the inscription "Adios, M.F." spray painted on the back. Appellant was arrested in front of his home on December 24, 1977 as he alighted from a Volkswagen bearing these words. Additionally, a registration number recorded by an observant witness during Porter's ordeal matched the registration of the car in appellant's driveway. The fact that appellant offered alibi evidence does not defeat the verdicts. "Where the evidence is conflicting, the credibility of the witness is solely for the jury and if its findings are ...


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