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filed: June 1, 1984.




Joseph T. Kelley, Jr., Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ. Spaeth, President Judge, filed a concurring statement.

Author: Cirillo

[ 329 Pa. Super. Page 495]

This is an appeal from a judgment of sentence entered in the Court of Common Pleas, Philadelphia County. On October 23, 1976 at approximately 7:45 p.m. appellant, Ollie Carter, was arrested for the robbery of a Pantry Pride employee who had just collected the day's mail and receipts from the Pantry Pride store at Front Street and Godfrey Avenue in Philadelphia.

Because of his unavailability for various reasons, appellant was not brought to trial until June 1, 1981. On June 8, 1981, following a jury trial, appellant was convicted of robbery, criminal conspiracy and several counts of simple assault. After post-verdict motions were denied, appellant was sentenced to consecutive sentences of ten to twenty years imprisonment for the robbery, two to four years for the conspiracy, and one to two years on each of the simple assault convictions. This appeal followed.

Initially, appellant contends that the evidence presented at trial was insufficient to sustain his convictions on any of the above charges. The test of the sufficiency of the evidence in a criminal case is whether, viewing all the

[ 329 Pa. Super. Page 496]

    evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Nelson, 320 Pa. Super. 488, 467 A.2d 638 (1983); Commonwealth v. Russell, 313 Pa. Super. 534, 460 A.2d 316 (1983). Viewed in this light the record reveals the following facts.

At approximately 7:30 p.m. on October 23, 1976, Leon Markowitz, an employee of Pantry Pride, was robbed at gunpoint in the store's parking lot by two black males. Two sacks which contained mail and store receipts were stolen. The perpetrators fled the scene in a Volkswagen. Within moments of the robbery Philadelphia Police Officer John Randles arrived at the scene. He immediately obtained an account of the crime and descriptions of the suspects, their get-away car, and their direction of flight. These details were quickly broadcast over police radio. Shortly thereafter, Philadelphia Police Sergeant Charles Tapper spotted a Volkswagen in the vicinity which matched the reported description and which had two black male occupants. The police attempted to intercept the vehicle, but the Volkswagen sped off. A high-speed chase ensued, in which Sergeant Tapper and his partner were joined by Officer Koiko in a second police car.

Appellant, the driver of the Volkswagen, attempted to elude the police. During the chase the passenger of appellant's vehicle opened fire on the pursuing police cars. At one point the Volkswagen stopped and the gunman alighted to get a better shot. He fired several times, jumped back in the car, and sped off. The pursuit continued for fifteen blocks when appellant's get-away efforts were thwarted by a sudden collision with a police car stationed as a road block. After a brief scuffle, appellant and his accomplice were subdued. The two Pantry Pride mail bags, which the robbery victim later identified as those stolen, were recovered from the wrecked car. Also, two guns were retrieved from the car.

[ 329 Pa. Super. Page 497]

Appellant was placed under arrest and taken to the Albert Einstein Medical Center, Northern Division, for treatment of minor injuries suffered at the time of his arrest. While at the hospital, appellant confessed to the police that he and his accomplice, Robert Forrest, had planned the robbery hoping for a "big score". He admitted that he and his partner did in fact rob Leon Markowitz and that he then attempted to elude the police while Forrest fired at them.

Based upon our review of the facts as adduced through trial testimony, we are convinced that the evidence was sufficient to support all of appellant's convictions.

With regard to the conviction for the robbery of the Pantry Pride employee, it is true that no clear eyewitness identification was presented at trial which implicated appellant. Nonetheless, circumstantial evidence alone may be sufficient to support a conviction, provided the inferences relied upon are more than mere conjecture or surmise. Commonwealth v. Sinwell, 311 Pa. Super. 419, 457 A.2d 957 (1983); Commonwealth v. McCrea, 308 Pa. Super. 284, 454 A.2d 132 (1982). Here, the circumstantial evidence is compelling and points to one virtually inescapable inference -- the appellant robbed Leon Markowitz in the parking lot of the Pantry Pride.

Appellant also maintains that the evidence presented at trial was insufficient to support his convictions for simple assault. The offense of simple assault is defined as follows:

18 Pa.C.S. ยง 2701 Simple Assault

(a) Offense defined -- A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.

(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

Attempt exists within the contemplation of this statute when a person, with intent to ...

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