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COMMONWEALTH PENNSYLVANIA v. FRANK VOSS (09/21/84)

filed: September 21, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK VOSS, APPELLANT



No. 00424 PITTSBURGH, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8102970 of 1981.

COUNSEL

William F. Cercone, Jr., Pittsburgh, for appellant.

Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cavanaugh, Popovich and Hester, JJ. Popovich, J., concurs in the result.

Author: Hester

[ 333 Pa. Super. Page 334]

Appellant, Frank Voss, was convicted by jury on September 30, 1981 of two counts of aggravated assault,*fn1 one count of robbery,*fn2 and one count of simple assault.*fn3 Post-verdict motions were argued and denied. Sentences of five to ten years were imposed for each count of aggravated assault, and five to ten years for the third count of robbery, for a total sentence of fifteen to thirty years, as the sentences were to be served consecutively. Sentence was suspended on count four, simple assault. This is an appeal from the judgment of sentence entered April 2, 1982 in the Court of Common Pleas of Allegheny County, Pennsylvania. Appellant contends*fn4 that the identification procedures

[ 333 Pa. Super. Page 335]

    used were suggestive and prejudicial, and that the arrest warrant was illegally issued. We reject appellant's contentions and the judgment of sentence is affirmed.

The relevant facts are as follows: On April 11, 1981, Thomas Jackson, Dennis Kuhn, Edward Gray, and Robert Doyle were drinking at The Triangle Bar in the Mount Washington area of Pittsburgh. As the four emerged from the bar at 2:00 a.m., closing time, appellant approached the group and began shooting a thirty-two caliber handgun.

Mr. Gray, who never saw the assailant, was shot in the stomach and fell to the street. Mr. Jackson was then grabbed by appellant and beaten about the face and head with the pistol. Appellant demanded money, which Jackson did not have, after which appellant demanded and received Jackson's leather coat. Jackson was able to view appellant face-to-face for approximately one minute. Both Dennis Kuhn and Robert Doyle witnessed this assault from distances of twenty feet and twenty-five feet respectively.

After beating Mr. Jackson, appellant approached Dennis Kuhn, put a gun to his side, and demanded money. After giving Voss $30.00, Kuhn was shot twice by Voss, once in the chest, which required surgery, and once in the side. This latter bullet lodged in a key ring in Kuhn's chest pocket. Mr. Jackson witnessed the shooting of Kuhn from a distance of between thirty-to-forty feet. He was able to determine that Kuhn's assailant was the same person who had assaulted him.

Robert Doyle corroborated the events as told by the victims, witnessing Ed Gray being shot, Tom Jackson being beaten, and appellant pointing the gun at Kuhn. Doyle did not see appellant shoot Kuhn because he had started down the street to seek help. Doyle returned with a friend and passed within ten feet of appellant, viewing him again for about five seconds and recognizing that appellant was the

[ 333 Pa. Super. Page 336]

    same person who had shot Gray and beaten Jackson. Hearing the police rushing to the ...


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