No. 819 October Term 1979, Appeal from Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal, at No. 4461 of 1977
Robert F. Pappano, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Wickersham, Brosky and Eagen, JJ.*fn*
[ 280 Pa. Super. Page 183]
Edward Ebo, appellant, was tried and convicted by a jury in the Court of Common Pleas of Delaware County of robbery, aggravated assault, simple assault, recklessly endangering another, criminal attempt-attempted theft, and conspiracy. A judgment of sentence of not less than one nor more than two years imprisonment was imposed on the robbery conviction.*fn1 The remaining judgments of sentence were suspended. This appeal followed.
Ebo argues the Commonwealth's evidence is insufficient to support the convictions for robbery and criminal attempt-theft*fn2 because the "Commonwealth simply failed to introduce the testimony of the victim, that anything had been taken from him and [t]here is not even any positive testimony that an attempt to take anything was made."
Given Ebo's argument, we need only determine if the evidence established an attempt to commit theft because
[ 280 Pa. Super. Page 184]
such proof is sufficient to establish the pertinent element of robbery which Ebo claims was not established, as well as the crime of criminal attempt. 18 Pa. C.S.A. § 3701(a)(2). "An attempt to commit a specific crime is accomplished when a person [, with intent to commit a specific crime,] does by any act that which constitutes a substantial step toward the commission of that crime." Commonwealth v. Butch, 238 Pa. Super. 524, 528, 361 A.2d 380, 382 (1976); 18 Pa. C.S.A. § 901(a). In reviewing the evidence to determine if an attempt to commit a theft as delineated was here established, we must accept as true all of the evidence and reasonable inferences therefrom upon which, if believed, the jury could have based its verdict. Commonwealth v. McFadden, 448 Pa. 277, 292 A.2d 324 (1972). So viewed, the evidence establishes the following:
On June 25, 1977, at approximately 2:30 p. m. in a public parking lot in Darby, Robert McLoughlin, the victim, was opening his car door when two persons ran from behind another car and attacked McLoughlin with a pipe raised in the air. McLoughlin attempted to defend himself by jabbing at the attackers. During the course of the attack, McLoughlin was struck in the back with the pipe. As McLoughlin turned to escape from the attackers, they fled in the opposite direction. Dorothy C. Reed, who witnessed the attack from her car while stopped at a traffic light approximately twenty-seven feet away, testified that McLoughlin was in the parking lot waving his hands; that two boys were also there and one had a long pipe and a green paper bag; that, while one of the boys was approaching McLoughlin with the pipe, the other, Ebo, "went over to the side of the car and tried to open up the car door;" and, that Ebo opened the door, but did not go inside.
We agree with the trial court that the evidence presented, particularly the opening of McLoughlin's car door by Ebo during the course of the attack, is sufficient to support an inference that the attackers had the intent to commit a theft and a conclusion that, inter alia, the opening ...