No. 03281 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Luzerne County, No. 1827A of 1980.
Michael R. Kostelansky, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Montemuro, Cercone and Hester, JJ.
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On November 10, 1980, appellant was adjudged guilty of robbery, theft and conspiracy. Timely post-verdict motions
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were filed and denied, and appellant was sentenced to a period of incarceration of not less than five nor more than ten years on his robbery conviction. Regarding his conspiracy and theft convictions, appellant received a cumulative seven year probationary term which was to be consecutive to his robbery conviction. This probationary sentence was apportioned as a five year period on his conspiracy conviction and a two year term on his theft conviction. It is from this judgment of sentence that appellant has appealed.
The Commonwealth's evidence is as follows:
On July 8, 1980, at approximately 1:15 a.m., Thomas Fontana was awakened by pounding upon the door of his room at the Imperial Motor Inn in Wilkes-Barre, Pennsylvania. Upon opening the door to investigate the origin of the noise, he found appellant pointing a knife at him in a menacing fashion. Fontana immediately moved back into his room, whereupon appellant and his co-conspirator, Lisa Nelson, entered and forced Mr. Fontana back to the side of his bed. Appellant then demanded, "Where's your money? Where's your wallet?" In response to this threat, Fontana pointed to his wallet which was in his trouser's pocket. At this juncture, appellant made several thrusts toward Fontana with the knife, making threats to the effect that he "would really like" to stab Fontana. While appellant continued to threaten Fontana, Ms. Nelson placed the wallet containing $46.00 and the victim's keys into her purse. Appellant then said to Fontana, "Come on, I know you have more. Where is it?" So as to force the issue, appellant kicked Fontana in the stomach. At this point, Fontana pleaded to both appellant and his co-conspirator, "Please, leave me alone. If I had any more money I'd give it to you, but I don't. So take what is there and leave, please." Appellant and Ms. Nelson subsequently left the room.
Appellant raises several issues on appeal: 1) whether the evidence was sufficient to sustain his convictions for robbery, theft and conspiracy; 2) whether his trial counsel was ineffective for not calling his co-conspirator, Lisa Nelson, to testify on his behalf; 3) whether the trial court erred in
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allegedly not providing an adequate basis for his sentence, and also whether appellant's sentence was illegal and excessive; and 4) whether his convictions for robbery and theft should have merged for sentencing purposes.
Regarding appellant's sufficiency arguments, our Supreme Court has stated:
The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975). Commonwealth v. Boyd, 461 Pa. 17, 24, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975). Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Robson, supra; Commonwealth v. Murray, supra; Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The fact-finder is free to believe all, part, or none of the evidence. Commonwealth v. Robson, supra; Commonwealth v. Smith, supra.
Commonwealth v. Rose, 463 Pa. 264, 267-78, 344 A.2d 824, 825-56 (1975). Having summarized the evidence using the Rose standard, we will now apply the law as it pertains to this issue.
Robbery is defined in 18 Pa.C.S.A. § 3701 as follows:
(1) A person is guilty of robbery if, in the course of ...