No. 2224 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Criminal, at No. 352 - 1981.
Gregory R. Reed, Easton, for appellant.
Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.
Wickersham, Montemuro and Montgomery, JJ. Wickersham, J., files dissenting opinion.
[ 333 Pa. Super. Page 225]
This is an appeal from a judgment of sentence. On May 9, 1981, a jury found the appellant, Lawrence Grahame, to be guilty of robbery,*fn1 recklessly endangering another person*fn2 and conspiracy.*fn3 The appellant filed timely post-verdict motions which were argued to the court en banc. On April 30, 1982, the court issued an order and opinion denying these motions. On July 16, 1982, the appellant was sentenced to seven and one-half (7 1/2) to fifteen (15) years imprisonment on the charge of robbery, one (1) to two (2) years imprisonment on the charge of recklessly endangering another person, and one (1) to two (2) years imprisonment on the charge of conspiracy. All sentences were imposed so as to run concurrently. This timely appeal followed.
[ 333 Pa. Super. Page 226]
The appellant asks us to consider multiple allegations of error by the trial court; however, we need only consider the appellant's contention that the court erred in denying the appellant's demurrer to all charges for want of sufficient evidence to submit the case to the jury.
We note initially that for purposes of . . . [his] demurrer, . . . [appellant] admitted all the facts which the Commonwealth's evidence tended to prove and all inferences reasonably deducible from those facts. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Act of June 5, 1937, P.L. 1703, No. 357, § 1, 19 P.S. § 481. In ruling on a demurrer the proper test to be applied by the trial court is whether the Commonwealth's evidence and all reasonable inferences therefrom is sufficient to support a finding by the trier of fact that the accused is guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). (Footnote omitted).
Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979). See also, Commonwealth v. Gilliard, 300 Pa. Super. 469, 446 A.2d 951 (1982).
The evidence presented by the Commonwealth was essentially the testimony of five witnesses: Pamela Kranich, Alton Parks, Nicholas E. Englesson, Detective Joseph Mugavero and Donald Kowalski.
Pamela Kranich testified that on December 16, 1980, she was employed as a cashier at the Food Lane Supermarket on Berwick Street in Easton. At approximately 7:30 P.M., a young black male entered the store. Ms. Kranich recognized the male as Alton Parks, whom she had known previously. Parks stood near the door for a few minutes, and then approached Kranich. He inquired if the store carried "hats". Kranich replied negatively.
Parks left the store, but returned after a few minutes with two other black males. At the outset of Mrs. Kranich's testimony, she stated, "he came back in with two other gentlemen, which [sic] are sitting right in front of us." (N.T. at 23). She identified one of the men as appellant's
[ 333 Pa. Super. Page 227]
co-defendant, Darnell Williams. The prosecutor then asked:
Q. I repeat my question, where was Mr. Grahame at the time?
A. Standing next to Darnell.
Q. When you say Mr. Grahame, is that person present here in the courtroom today?
(N.T. at 24-25). She then pointed out the appellant.
The three men went to the health and beauty aids section of the store, remaining there for a few minutes. They then proceeded to the "cupcake aisle." One of the men picked up a cupcake or pie and brought it up to the register. When Ms. Kranich rang up the purchase, Darnell Williams produced a sawed-off shotgun. The three men reached into the open cash drawer and took all of the money, which they stuffed into a gym bag. The men left and Ms. Kranich alerted the police by means of a security alarm.
Approximately two to three weeks later, Detective Mugavero showed an array of six to eight photographs to Ms. Kranich from which she was able to pick out a photograph of Darnell Williams as one of the men who robbed the store.*fn4 On March 18, 1981, Mrs. Kranich, accompanied by Detective Mugavero and Assistant District Attorney Nicholas Englesson, went to Northampton County Prison to conduct a line-up. The first line-up was comprised of five males, but did not include any of the alleged perpetrators of the robbery. Ms. Kranich did not identify anyone as one of the robbers. A second line-up was conducted; this one comprised of ten males including the appellant. Ms. Kranich failed to identify the appellant as one of the robbers. At the time of the line-up, she admitted to defense counsel that she did not get a good look at the third man. (N.T. at 66). Ms. Kranich also testified, thusly:
Q. How was the lighting in the store that evening?
[ 333 Pa. Super. Page 228]
Q. Clear. About as clear as the courtroom today?
Q. So you had no problem whatsoever seeing these perpetrators that came into the market?
Q. You did not have any ...