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COMMONWEALTH PENNSYLVANIA v. WALTER UNDERWOOD (05/21/85)

submitted: May 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER UNDERWOOD, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE JUNE 18, 1984 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 83-09-204 206 207

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

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

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

Author: Cirillo

[ 347 Pa. Super. Page 258]

Walter Underwood was convicted by a jury in the Court of Common Pleas of Philadelphia County on charges of robbery, simple assault, and conspiracy. He was sentenced by the Honorable Angelo A. Guarino to three to seven years in prison, and here appeals the judgment of sentence.

The evidence shows that on August 22, 1983, Charles Blow was walking down 24th Street in Philadelphia when he came upon four men standing on the sidewalk talking amongst themselves. Hoping to avoid the men, Blow circled into the middle of the street. Underwood followed Blow into the street and positioned himself in front of Blow, impeding his progress and restraining him with his arm. Underwood asked Blow for money, to which Blow responded he had none. As Blow tried to move away, Underwood told him he "wasn't going anywhere." At that point someone struck Blow in the head from behind with a bottle, dazing the man, and someone rifled Blow's pockets, retrieving keys and $3.85 in cash. Blow did not see who committed these latter acts. However, he testified that the four men he had first seen were the only people on the block, and that after the incident all four walked away together.

Underwood was arrested a short distance away by Officer Goldsmith, who testified at trial as to the circumstances of the arrest:

I was patrolling in my car and as I got to the corner of 23rd and Bainbridge Street, there was a group of [about seven or eight] young adults there . . . . They were hollering as I rode by that a fellow running up Grays Ferry Avenue had just robbed somebody . . . . [T]hey were indicating

[ 347 Pa. Super. Page 259]

    that the fellow running up Grays Ferry Avenue . . . had just robbed an older man.

Goldsmith immediately apprehended Underwood, who was alone and running "at a track-type pace" on Grays Ferry Avenue. Blow then came up and identified Underwood as one of the robbers.

Underwood's defense at trial was that he had spent the day with his friends panhandling for money to buy wine, and that two men (not the aforementioned friends) had robbed Blow while Underwood was innocently asking him for money. Underwood said he left the scene with his friends when he feared he would be implicated in the robbery.

On appeal to this Court, Underwood asks for a new trial on two grounds: 1) the trial court's admission into evidence of the out-of-court declarations made to Officer Goldsmith by the young adults; and 2) the court's refusal to give a "missing witness" instruction to the jury ...


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