NO. 1341 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Chester County, Criminal No. 1273-77
M. Douglas Eisler, Assistant Public Defender, West Chester, for appellant.
Stuart Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Spaeth, President Judge, and Cirillo and Johnson, JJ.
[ 329 Pa. Super. Page 104]
This is an appeal from judgment of sentence. Appellant was found guilty of robbery, aggravated assault, two counts of firearms violations, criminal attempt theft, and two counts of criminal conspiracy, and was sentenced to a total of six to twelve years imprisonment. We affirm.
The trial court accurately recited the pertinent facts as follows:
On Monday, July 11, 1977, at approximately 3:50 p.m., two (2) black males entered the insurance office of Mr. Leebert Logan located at 1204 Paoli Pike, West Goshen Township, Chester County, Pennsylvania. (N.T. 278-279). While one of the pair remained at the door, the other entered the office and inquired about his uncle. (N.T. 281). After being informed that Logan did not know who his uncle was, the two (2) men left the office. (N.T. 281).
[ 329 Pa. Super. Page 105]
At approximately 4:30 p.m., on the same day, two (2) black men entered the insurance office. (N.T. 282). As one man waited in the outer office, the second man entered the inner office, identified himself as Mr. Johnson (N.T. 294) and inquired about automobile insurance coverage. (N.T. 291-292). After discussing insurance matters for approximately ten minutes, the two individuals left the office. (N.T. 295).
The men immediately re-entered the office. (N.T. 295). Johnson (later identified as Henry Bailey) forced Logan's secretary, Mrs. Ellen Pyle, to crawl underneath her desk. (N.T. 297, 350). The second man began hitting Mr. Logan over the head with a small revolver and yelling that he was going to kill him. (N.T. 295-297). Mr. Bailey kicked Logan and jumped on Logan as the second aggressor and Logan struggled over the gun. (N.T. 298).
Mr. Bailey ransacked Mr. Logan's desk and took a bank pouch containing two (2) Five Thousand ($5,000) Dollar checks from his desk. (N.T. 297, 304).
As the two (2) actors fled the premises, they were observed by Mr. Wilfredo Colon, who was entering the outer office. (N.T. 503). Mr. Colon gave a description of the two men and further stated that they were driven from the scene by a third black male in a 1967 brown Ford Ltd., with trim top, two-door hard top bearing a white Pennsylvania temporary tag license number 0588162. (N.T. 503-504).
Mr. Logan was taken to the hospital and received emergency medical attention requiring fifty-one (51) stitches in his face and scalp and the removal of two shattered teeth. (N.T. 505, 305).
The police were called and at approximately 5:00 p.m. of the same day, a description of the individuals and the vehicle was circulated by a general alarm message put out on the police radio. (N.T. 49).
At approximately 8:00 p.m. of the same evening, Pennsylvania State Trooper Glenn J. Flick observed a vehicle travelling south on Pa. Route 100, near the intersection of
[ 329 Pa. Super. Page 106]
Pa. Route 113, matching the broadcast description of the vehicle. (N.T. 51). The trooper followed that vehicle south on Pa. Route 100 at a distance of five (5) car lengths with no intervening vehicles coming between his and the suspect vehicle. (N.T. 57).
The trooper observed four (4) black males in the vehicle. (N.T. 51-52). From his vantage point, the trooper could see movement within the back seat of the car, as if they were either putting or removing something from between their legs. (N.T. 53). The Trooper also saw these people turning around to look at the police car. (N.T. 61-62, 96). When the vehicle stopped at an ARCO station, Trooper Flick ordered the occupants from the car, searched and handcuffed the suspects and held them for an additional period of ten (10) minutes until Detective Stephen E. Boland, Jr., of the West Goshen Township Police arrived at the scene, at which time all four suspects were turned over to the custody of Detective Boland. (N.T. 54-55). Upon investigation by Detective Boland, it was determined that Mr. Al Gordon, one of the four suspects, was innocent of the Logan robbery so he was released. (N.T. 126-128). The remaining suspects, Mr. Henry Bailey, Mr. Danny Bunch [appellant], and Mr. John Sims were arrested and charged with robbery and other offenses in relation to the Logan robbery. (N.T. 129, 145).
Appellant first argues that because several witnesses who testified at trial were unable to positively identify him as one of the participants in the robbery, there was insufficient evidence to support the convictions. However, Bailey, one of appellant's alleged co-conspirators, testified at trial and identified appellant as a participant in the robbery. This identification was unshaken and by itself was sufficient to support the convictions. See Commonwealth v. Willis, 276 Pa. Super. 13, 419 A.2d 70 (1980) (accomplice's
[ 329 Pa. Super. Page 107]
identification testimony by itself sufficient to support conviction).
Appellant next argues that there was insufficient evidence to support the conviction for criminal attempt theft because there was no evidence that the actors in the crime ever exercised control over the bank pouch. After reviewing the briefs and the record, we find ...