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COMMONWEALTH PENNSYLVANIA v. JOHN ZOLLER (02/22/83)

submitted: February 22, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOHN ZOLLER



No. 1129 Pittsburgh, 1980, Appeal from the Order of October 24, 1980, Court of Common Pleas, Beaver County, Criminal Division, No. 433 of 1980.

COUNSEL

Thomas W. Minett, Assistant District Attorney, Beaver, for Commonwealth, appellant.

Bernard J. Rabik, Assistant Public Defender, Beaver, for appellee.

Spaeth, Brosky and Johnson, JJ.

Author: Johnson

[ 318 Pa. Super. Page 404]

Appellant was arrested and charged with aggravated assault,*fn1 simple assault,*fn2 recklessly endangering another person,*fn3 and criminal conspiracy.*fn4 Trial was conducted, without a jury, before Judge Frank E. Reed. At the close of the prosecution's case, defense counsel's demurrer was sustained as to all counts. The Commonwealth here appeals from the order sustaining such demurrer.

"The test to be applied in ruling on a demurrer is whether, accepting as true all of the prosecution's evidence and all reasonable inferences therefrom, it is sufficient to support a finding by the fact finder that the defendant is guilty beyond a reasonable doubt." Commonwealth v. Turner, 491 Pa. 620, 622, 421 A.2d 1057, 1058 (1980) (citation omitted). See also, Commonwealth v. Baker, 287 Pa. Superior Ct. 39,

[ 318 Pa. Super. Page 405429]

A.2d 709 (1981). With the above standard in mind, we will proceed to review the facts of this case.

On the evening of June 27, 1980, there was a disturbance of a racial nature in the Borough of Aliquippa at approximately 10:30 p.m. Appellee, a white man, was observed participating in the disturbance, at least to the extent of shouting threatening racial slurs. At approximately 10:45 p.m. appellee was viewed with one Boyer, another white man, near the police station where a number of the above participants had been taken. They were observed in a blue pick-up truck. The two men were again seen together at about 12:00 midnight.

Shortly after 2:00 a.m. on June 28, 1980, a Mr. Sumlin, a black individual was standing outside a bar when a blue pick-up truck passed by. A witness who had seen the same truck pass by 10 minutes earlier testified that on its second pass, a shot rang out and he saw a large flash emit from the truck. Mr. Sumlin fell to the ground with a wound to his head. Defense counsel stipulated that appellee was the operator of the truck and that Boyer had fired the shot from the passenger side of the truck.

Mr. Zoller was questioned a few hours after the incident; he stated he had no knowledge of the shooting. Subsequently, he did give a statement admitting his participation. He led the police to the shotgun and the spent shell. Appellee admitted that he had gone with Boyer to get the shotgun shell but claimed he was unaware of the presence of the shotgun and Boyer's intent to use it for a criminal purpose.

The trial court in sustaining the demurrer found dispositive the testimony of two police officers. Both officers testified that appellee had told them that he had no advance warning of Boyer's intent. The court ruled that such testimony "established that Zoller had no knowledge" of the intended shooting; ...


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