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COMMONWEALTH PENNSYLVANIA v. JAMES LEWIS (05/14/82)

filed: May 14, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JAMES LEWIS, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. WILLIAM WALSTON, APPELLEE



No. 1185 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Delaware County, No. JV 19194 of 1980, No. 1186 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Delaware County, no. JV 18554 of 1980.

COUNSEL

Vram Nedurian, Jr., Deputy District Attorney, Media, for Commonwealth, appellant.

Andrew J. D'Amico, Media, for Lewis, appellee in No. 1185.

David Breen, Woodlyn, for Walston, appellee in No. 1186.

Price, Wieand and Hoffman, JJ.

Author: Wieand

[ 299 Pa. Super. Page 369]

In this juvenile proceeding, the trial court sustained demurrers and dismissed criminal complaints alleging robbery and theft by unlawful taking because the Commonwealth's evidence showed only theft by receiving stolen property. We reverse.

James Lewis and William Walston, together with Lloyd Rochester and Ronald Walston, were arrested and charged with homicide, robbery, aggravated assault, theft by unlawful taking and conspiracy in connection with a mugging in Chester, Delaware County. The charges against James Lewis and William Walston, the appellees herein, were subsequently transferred for disposition to the Juvenile Division. At the conclusion of the Commonwealth's case, the hearing court sustained demurrers to all charges, holding that the Commonwealth's evidence was sufficient to show only theft by receiving stolen property. The Commonwealth appealed.

An order sustaining a demurrer to the Commonwealth's evidence is appealable. Such an order presents a legal issue and not a factual one. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); Commonwealth v. Danchision, 270 Pa. Superior Ct. 112, 410 A.2d 1274 (1979); Commonwealth v. Green, 210 Pa. Superior Ct. 482, 233 A.2d 921 (1967). "On appeal the proper test to apply in determining the validity of a demurrer is whether the evidence of record and the inferences reasonably drawn therefrom would support a verdict of guilty . . . . In making such determination

[ 299 Pa. Super. Page 370]

    we must read the evidence in the light most favorable to the Commonwealth's case." Commonwealth v. Green, supra, 210 Pa. Super. at 484, 233 A.2d at 922.

So construed, the evidence presented at the adjudicatory hearing established the following. The victim, John McGinn, was attacked by several black youths while walking to work at the Atlantic Steel Company in Chester on the evening of December 26, 1979. His wallet was taken by his attackers, who quickly fled from the scene. Although there were several witnesses to the incident, none were able to identify the appellees as being among the assailants. However, there was testimony that shortly after the incident, appellees and their two companions, Lloyd Rochester and Ronald Walston, returned to the home of the appellee, William Walston. Rochester carried McGinn's wallet and announced a successful mugging. The four men, including appellees, thereafter divided money removed from the wallet. The wallet was later found on a trash pile near the Walston home. McGinn, the victim, was hospitalized as a result of injuries received in the incident and subsequently died.

On appeal, the Commonwealth argues that it was error to sustain demurrers to delinquency charges where, as here, there was evidence that moneys taken from the mugging victim had been distributed in part to appellees, who had knowledge of its source.*fn1 The hearing judge conceded that the Commonwealth's evidence was sufficient to permit a finding of theft by receiving stolen property but ...


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