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COMMONWEALTH PENNSYLVANIA v. ANDRE BARKER (03/09/84)

filed: March 9, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ANDRE BARKER, APPELLANT



No. 556 Phila., 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 1701/1703, 1705 February Term, 1979.

COUNSEL

Burton A. Rose, Philadelphia, for appellant.

Maxine Stotland, Assistant District Attorney, Philadelphia, for Com., appellee.

Cavanaugh, DiSalle*fn* and Watkins, JJ.

Author: Watkins

[ 325 Pa. Super. Page 359]

This case comes to us on appeal from the Court of Common Pleas, Criminal Division, of Philadelphia County and involves the defendant-appellant's appeal from a judgment of sentence of five (5) to twenty (20) years imprisonment after he was convicted by a jury of robbery, simple assault, conspiracy and prohibited offensive weapons.

The evidence produced at trial established that on February 5, 1979 at approximately 3:00 P.M., the defendant entered the Ramo Beauty Products Store at 2228-30 N. 11th Street while Artis Ray, the victim, was talking on the telephone. After observing that the defendant had entered the store, the victim told him he would be with him shortly. Both the fluorescent lights and the daylight enabled the victim to see the defendant clearly at this point. As the victim concluded his phone conversation, the defendant pulled a shotgun from his tote bag and, shoving it into his face, announced a hold-up. He pushed the victim into the rear room of the store and ordered him to kneel. The defendant then hit him on the forehead with the barrel of the gun. The victim fell forward, breaking the frame of his glasses. Defendant knelt next to him and, facing him, threatened to kill him. Defendant then tied him up with clipper cords from the beauty parlor. At that point, a second person entered the rear room of the store and defendant handed him the gun. The second man kicked the

[ 325 Pa. Super. Page 360]

    victim. The defendant then began to tear the victim's clothes apart in order to determine if he had money in his pockets. The perpetrators searched his wallet and card case and took a dollar bill as well as a blank check which they insisted he complete. Two more men entered the store and were joined by defendant and the second male. The victim watched them fill empty boxes with electric curlers, cords, combs, brushes, and other beauty equipment. Defendant then asked him for the key to his car and joined the others in packing the "loot" in the car. The victim then untied himself as they loaded the car and watched the four figures as they drove away in his 1978 Omega. He called the police immediately to report the robbery. When a policeman arrived, he described the car and license number and recounted the incident to the police.

As a result of several radio calls, the Omega was spotted quickly by the police. When the driver saw the police behind him, he veered into the right front fender of the police car and then, after hitting the rear of a Cadillac, jumped out of the car and ran away, successfully eluding the police.

When the car was finally stopped, Officer James McDevitt discovered a .32 caliber automatic pistol on the seat between defendant, seated in the left rear seat, and co-defendant Wright. Officer Rudolph Meritt observed a blue tote bag between defendant's legs with a shotgun barrel protruding. The shotgun shells were retrieved from the bag. Finally, the merchandise stolen from the victim's store was found in the trunk of the car in which the three males had been sitting. Within ten minutes of the call to the police, two groups of males were brought back for identification by the victim. He dismissed the first group but identified the second group of three males, which included defendant, as his assailants. The victim was subsequently taken to the Medical College Hospital of Pennsylvania for examination of the bump on his head caused by the blow from the butt of defendant's shotgun.

[ 325 Pa. Super. Page 361]

On November 29, 1979, the jury returned a verdict of guilty of robbery, simple assault, conspiracy and ...


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