No. 2339 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, at Nos. 2234-36 and 2238-39, May Session, 1976.
Leonard Sosnov, Philadelphia, for appellant.
Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.
[ 287 Pa. Super. Page 60]
This is an appeal by the defendant-appellant, from a judgment of sentence and denial of post-trial motions by the Court of Common Pleas of Philadelphia County, Criminal Trial Division, after the defendant was convicted non-jury of possessing an instrument of crime generally, possessing an instrument of crime -- weapon, prohibited offensive weapon, conspiracy, and robbery. On appeal, the defendant claims that his counsel was ineffective.
The facts of the case were adequately summarized by the court below as this:
"On May 19, 1976, while employed at the Tilden Food Market, 3539 Vaux Street, Philadelphia, Russell Block was approached by a man for "Shake and Bake" to make gravy. Mr. Block answered that the "Shake and Bake" was kept at the other end of the counter and continued to do his work. A second man came from behind the counter and pointed a gun at Mr. Block. The man was advised to be quiet and turn around. He then took Thirty-one ($31) Dollars in bills from one of Mr. Block's pockets and an unknown amount from another pocket. Mr. Block was then told to remove his pants. This second man was later identified by Mr. Block as the defendant.
[ 287 Pa. Super. Page 61]
"Sandra Rutherford, another employee, testified that she was standing on boxes cleaning shelves when the holdup was announced. She was made to lie on the floor along with Mr. Block and a Mr. Parker (who was also in the store). All three were then put into the store's refrigerator. Miss Rutherford testified that she heard someone trying to get into the cash register while they were in the refrigerator. Mr. Parker, Mr. Block and Miss Rutherford remained in the refrigerator until they heard an entering customer call out, "Is anybody here?" After the defendant and his accomplices left, the employees found the cash register open and the change bin to the register lying on top of the counter. Approximately Two Hundred Fifty ($250) Dollars and a check made out to Tilden Food Market were removed. Four (4) cartons of menthol cigarettes, mints and lifesavers were also taken.
"Meanwhile, Officer Helmetag, Badge No. 6850, who was only one and one-half (1 1/2) blocks away from the scene, received a radio call that three (3) Negro males were acting suspiciously in the area and that one was carrying a brown paper bag. As he approached the store he saw two (2) black males exiting the store, one with a brown paper bag. When the officer called to the men to come over to the car, both bent slightly down. The defendant threw something to the ground which at that point appeared to be a gray barrel. The other man also dropped something at the same location, although the officer could not tell what it was at the time. The defendant threw the brown paper bag at Officer Helmetag and both suspects ran. The defendant was able to escape by running North on Vaux Street and East on Queen Lane. Officer Helmetag apprehended the other male, later identified as James Coffer. Simultaneous to the officer describing the defendant via police radio, someone ran out the store and announced that he caught one of the men who held up the store minutes before.
"Officer Davenport, Badge No. 1713 and Officer Martino, Badge No. 9752, responded to Officer Helmetag's radio information and arrived ...