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COMMONWEALTH PENNSYLVANIA v. KEITH CALLOWAY (04/15/83)

filed: April 15, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH CALLOWAY, APPELLANT



No. 242 Harrisburg, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Dauphin County, No. 1015 C.D. 1980.

COUNSEL

Francis M. Socha, Assistant Public Defender, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Cavanaugh, Beck and Montemuro, JJ.

Author: Montemuro

[ 313 Pa. Super. Page 175]

Appellant, Keith Calloway, was found guilty by a jury of criminal conspiracy.*fn1 Post-verdict motions were denied. Appellant was then sentenced to a term of five (5) to ten (10) years imprisonment. This appeal followed.

Appellant presents two questions on this appeal:

1. Did the lower court err in admitting into evidence statements made to the police and district attorney by the appellant?

2. Was the evidence insufficient as a matter of law to sustain the verdict?*fn2

[ 313 Pa. Super. Page 176]

For ease of discussion we will address the latter contention first. We affirm.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and with weight to be accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

So viewed, the record shows that in November of 1979, the appellant was hired, as a dishwasher, by Elby's Big Boy Restaurant located in Lower Paxton Township, Dauphin County. As things turned out, when appellant worked the 4:00 p.m. to 11:00 p.m. shift, he usually received a ride home from the assistant manager, William White. Routinely, before dropping appellant off at his home, and the other employees who also received a ride, Mr. White would deposit the night's proceeds into a nearby bank. Contrary to company policy which required that the deposits be made with a police escort, Mr. White did not adopt this security measure. Mr. White believed that the police escort was unnecessary because he felt adequately protected when

[ 313 Pa. Super. Page 177]

    accompanied by the appellant and the other Elby employees. Unbeknownst to Mr. White, the appellant had something else on his mind.

In December of 1979, before Christmas, the appellant met with an associate of his, Kirk Bennett, at Otto's Atmosphere, a bar located in Harrisburg. The discussion at this meeting evolved into and focused on a plan, conceived by appellant, to rob Elby's of the night proceeds. Appellant informed Bennett that the assistant manager would leave the restaurant at 11:00 p.m. with the money. Appellant would accompany him. There would be no guards. They agreed that it would be best to have three participants handle the robbery. Appellant would keep the assistant manager calm while walking to the car, Bennett would perform the actual "stick up" and another Elby's employee, one Jeffrey Ross, would take the money. The discussion ended. Thereafter, Bennett discussed the plan with the other associate, Jeffrey Ross.

In early January of 1980, the appellant and Bennett met at Otto's a second time. They again went over the robbery and decided to split the money evenly. This time ...


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