No. 1450 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, at Criminal Action No. 1084-79.
Alan Ellis, Philadelphia, for appellant.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Popovich and Watkins, JJ. Popovich, J., files a dissenting opinion.
[ 294 Pa. Super. Page 103]
In this appeal the defendant contends that the court erred in denying his motion in arrest of judgment.
The defendant was found guilty after a trial by jury of robbery, theft, recklessly endangering the life of another person, violations of the Uniform Firearms Act and criminal conspiracy. Post-trial motions were filed, his motion for a new trial was granted and his motion in arrest of judgment was denied. He appeals from this denial.
Two questions are involved in this appeal: (1) defendant's contention that the evidence was insufficient to sustain the guilty verdict; and (2) that Pa.R.Crim.Pro. 1100 was violated.
On January 22, 1979, the defendant, Andre Wilson, entered Spain's Gift Shop in the Cheltenham Mall. He was met by the cashier, Molly Gartner, who was helping him select greeting cards and who did not testify due to illness. The store manager, Jean Meadows, together with Gartner, waited on him. A saleslady, Geraldine Dinter, testified that between 11 and 11:30 a. m., his actions in walking about the store were suspicious and made her nervous. He left the store. The witnesses then saw a short, black man, never identified, with his arm around Ms. Gartner's waist brandishing a pistol. At the same time she saw the defendant who had reentered the store standing near the cash register. Ms. Dinter, Meadows and Gartner were forced by the gunman to lie on the floor and cover their faces. They heard the cash register open and money being taken out.
Another witness coming into the store was met by the gunman leaving and he took her handbag. A fourth witness testified that the defendant brushed passed her in leaving the store quickly at the same time.
The police were called and $88 was found to be missing, as well as the witness' handbag containing cash and credit cards. Less than 3 hours later the defendant was arrested, credit cards, money and clothing were taken from him. The credit cards were suppressed. The money consisted of 52-one dollar bills.
[ 294 Pa. Super. Page 104]
Mere presence at the scene of the crime is not alone sufficient to convict. Commonwealth v. Mitchell, 270 Pa. Superior Ct. 146, 411 A.2d 221 (1979). Nor is flight alone sufficient. Commonwealth v. Roscoli, 454 Pa. 59, 309 A.2d 396 (1977). But those factors taken together in conjunction with other circumstantial evidence may provide a sufficient basis for conviction. Commonwealth v. Dennis, 236 Pa. Superior Ct. ...