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COMMONWEALTH PENNSYLVANIA v. BERNARD DARDEN (03/11/83)

filed: March 11, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD DARDEN, APPELLANT



No. 3113 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 749 of 1981.

COUNSEL

Douglas M. Johnson, Public Defender, Norristown, for appellant.

Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.

Brosky, Wieand and Beck, JJ.

Author: Wieand

[ 311 Pa. Super. Page 171]

Bernard Darden was tried non-jury and was convicted of robbery,*fn1 theft by unlawful taking,*fn2 theft by receiving stolen

[ 311 Pa. Super. Page 172]

    property,*fn3 simple assault,*fn4 recklessly endangering another person,*fn5 terroristic threats,*fn6 possessing an instrument of crime*fn7 and criminal conspiracy.*fn8 Post verdict motions were denied, and Darden was sentenced to prison for not less than 2 1/2 nor more than 10 years.*fn9 The case is before us on direct appeal. Having reviewed the evidence, we find it sufficient to sustain the findings of guilt. However, an erroneous evidentiary ruling requires that a new trial be granted.

In determining the sufficiency of the evidence, we view the evidence, together with all permissible inferences therefrom, in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, when thus viewed, is sufficient to prove appellant's guilt beyond a reasonable doubt. Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982); Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Waller, 498 Pa. 33, 43, 444 A.2d 653, 658 (1982); Commonwealth v. Fortune, 305 Pa. Super. 441, 443, 451 A.2d 729, 730 (1982); Commonwealth v. Stasiak, 305 Pa. Super. 257, 263, 451 A.2d 520, 523 (1982).

The evidence shows that on February 23, 1981 the Community Federal Savings and Loan Association, situated in a Whitpain Township shopping mall, was held up at gunpoint by James Perry and Anthony Smith.*fn10 Police Sgt.

[ 311 Pa. Super. Page 173]

Robert Dean, responding to a call, arrived while the robbery was in progress. He observed the robbers as they emerged from the bank and as they entered a blue Ford and drove to a secluded spot on a service road at the rear of the mall. Sgt. Dean followed on foot and observed Perry and Smith exit from their vehicle and run toward a black Ford in which appellant was seated with the engine running. As additional police arrived, appellant attempted to flee, but he was quickly apprehended and taken into custody. By removing the keys from the ignition, the police were able to open the trunk of the black Ford, where Perry and Smith were hiding with a gun and a duffle bag containing $34,210.00.

Appellant was warned of his Miranda rights when he was taken into custody. He was advised of his rights a second time at police headquarters. Nevertheless, appellant elected to give an oral statement. He refused to allow his statement to be recorded, however, and refused to sign a written summary thereof which the police prepared. In his oral ...


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