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submitted: April 9, 1985.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8208628A.


Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wieand, Johnson and Montgomery, JJ. Montgomery, J., dissents.

Author: Wieand

[ 346 Pa. Super. Page 500]

The principal issue in this appeal is whether a criminal defendant's failure to appear for trial, without evidence of flight or concealment, is sufficient to permit a fact finder to infer a consciousness of guilt. The trial court, over defense objections, allowed evidence that appellant had failed to appear on a prior trial date and then instructed the jury that it could infer a consciousness of guilt from this evidence. We conclude that this was error. Therefore, we reverse and remand for a new trial.

At or about 1:00 p.m. on October 14, 1982, Jesse Johnson, an unlicensed taxi (jitney) driver picked up a passenger, whom he identified at trial as Daryl Babbs, at the corner of Herron and Wylie Avenues in the City of Pittsburgh. At his passenger's request, Johnson drove into an alley known as Sharp Way. There, the passenger produced a handgun and demanded Johnson's money. When Johnson attempted to exit the taxi and escape, the robber grabbed for and was able to extract Johnson's wallet. Johnson, yelling for help, ran down the alley. Patricia Javersack, whose home adjoined the alley, heard Johnson's cries for help and came into the alley. There she observed a tall, slender, dark, black man, who she was "pretty sure" was Babbs. She asked him what was wrong; whereupon, he responded that Johnson apparently needed help. Mrs. Javersack then returned to her home and called the police. The man later identified as Babbs entered the cab and drove away. Later, she found Johnson's wallet in the alley. Johnson testified that following the robbery he saw Babbs twice but did not call the police. When he saw Babbs a third time on October 21, 1982, he called the police because of pressure from other jitney drivers and because he feared that Babbs, if not stopped, would seriously injure someone. Babbs denied any involvement in the robbery and testified that he had been "housebound" because of abdominal surgery, made necessary by a stab wound, from October 6

[ 346 Pa. Super. Page 501]

    until October 21. The day of his arrest, he said, had been the first day on which he had ventured from his home.

This evidence was sufficient to sustain the jury's verdict of guilty, and the trial court properly refused to set it aside on Babbs' motion in arrest of judgment. In Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979), the Supreme Court said:

It is the responsibility of a reviewing court, in evaluating the sufficiency of the evidence to support the verdict of guilt, to view the testimony in a light most favorable to the Commonwealth, as verdict winner, to accept as true all evidence and all reasonable inferences upon which, if believed, the factfinder could have properly based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.

Id., 488 Pa. at 540, 412 A.2d at 1364. Accord: Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984); Commonwealth v. Tribble, 502 Pa. 619, 621, 467 A.2d 1130, 1131 (1983); Commonwealth v. Carpenter, 330 Pa. Super. 382, 384, 479 A.2d 603, 604 (1984); Commonwealth v. Riley, 330 Pa. Super. 201, 207, 479 A.2d 509, 512 (1984); Commonwealth v. Vazquez, 328 Pa. Super. 86, 89, 476 A.2d 466, 467-468 (1984).

Appellant argues that the evidence identifying him as the robber was vague, uncertain and contradictory and, therefore, insufficient to prove beyond a reasonable doubt that he committed the robbery. He would liken this case to Commonwealth v. Farrington, 219 Pa. Super. 104, 280 A.2d 623 (1971). There the victim of a burglary refused to say that the defendants were the burglars. Instead, the witness would say only that they resembled the burglars. Id., 219 Pa. Superior Ct. at 105-106, 280 A.2d at 624. The court held that the victim's testimony was too vague, tenuous and uncertain to establish beyond a reasonable doubt that the defendants ...

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