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COMMONWEALTH PENNSYLVANIA v. JAMES MCINTOSH (05/04/84)

filed: May 4, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MCINTOSH, APPELLANT



No. 925 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 3102 of 1979.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Media, for appellant.

Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, President Judge, and Hester and Lipez, JJ.

Author: Lipez

[ 328 Pa. Super. Page 259]

Defendant James McIntosh was convicted in a jury trial of robbery, 18 Pa.C.S. § 3701, theft by unlawful taking, 18 Pa.C.S. § 3921, recklessly endangering another person, 18 Pa.C.S. § 2705, terroristic threats, 18 Pa.C.S. § 2706, possession of firearms without a license, 18 Pa.C.S. § 6106, committing crimes with firearms, 18 Pa.C.S. § 6103, and criminal conspiracy, 18 Pa.C.S. § 903. Post-verdict motions were denied, and defendant was sentenced to ten to twenty years' imprisonment for robbery and a consecutive two to four years' imprisonment for conspiracy, with sentences suspended on all other charges. In this appeal, defendant contends: (1) that he should be granted a new trial on all charges because the lower court erred in allowing witnesses who had viewed an uncounseled photographic array to make in-court identifications of defendant; and (2) that his conspiracy conviction should be reversed because of a fatal variance between the criminal information on that charge

[ 328 Pa. Super. Page 260]

    and the proof at trial. We agree that the judgment of sentence for conspiracy must be reversed, but we find that defendant's motion for a new trial on the other charges was correctly denied.

I

The charges were brought in connection with an incident that occurred at Wyeth Laboratories in Radnor, Pennsylvania at approximately 12:00 noon on June 14, 1979. Lewis Oswald, an employee of Wyeth's cashier's office, was approached by a man with a revolver who ordered him to open the door to the cashier's cage. When Oswald did so, a second man entered the office, ordered him to lie on the floor, and handcuffed his wrist and ankles. Gerry Mixon, another Wyeth employee, saw the two men in the cashier's office and, believing something was wrong, left the area to notify security.

Catherine Welch, another Wyeth employee, was walking down the hallway to the cashier's office to cash a check when she was stopped by a young man who asked her if she had a match. She replied that she did not, then walked up to the cashier's window, where she saw a second man kneeling on the floor. A third man was also in the cashier's office, and one of them pointed a gun at her. The men in the office then ran, carrying a blue canvas bag. Kate Eby, another Wyeth employee, saw the two men with the blue bag leave the cashier's cage, join a third man in the hallway, and leave the building. The three men also passed another group of Wyeth employees as they fled from the building, nearly stepping on the foot of one of the employees, Maria Weber, as they did so. After the men left, a red car which had been noticed by several employees because it lacked a Wyeth parking sticker was found to be gone from the parking lot. Approximately $47,000.00 had been taken from the cashier's office.

Stephen Cauterucci and Thomas Tone were eating their lunch in a truck parked in a lot a few miles from Wyeth Laboratories on the ...


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