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COMMONWEALTH PENNSYLVANIA v. JOHN FERGUSON (10/27/86)

filed: October 27, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN FERGUSON, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 473-477 March Term, 1981.

COUNSEL

Barry L. Adelman, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Beck and Johnson, JJ. Johnson, J., files a concurring opinion.

Author: Wieand

[ 358 Pa. Super. Page 100]

John Ferguson was tried non-jury and was found guilty of robbery*fn1 and criminal conspiracy*fn2 in connection with the armed robbery of a gasoline station in Philadelphia. Post-trial motions were denied, and sentence was imposed. On direct appeal, Ferguson contends that the evidence was insufficient to sustain the convictions for robbery and conspiracy and argues that trial counsel was ineffective. We perceive no merit in these contentions and affirm the judgment of sentence.

In reviewing the sufficiency of the evidence,*fn3 we view the evidence presented and all reasonable inferences

[ 358 Pa. Super. Page 101]

    therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence thus viewed is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Campbell, 353 Pa. Super. 178, 179, 509 A.2d 394, 395 (1986); Commonwealth v. Taylor, 324 Pa. Super. 420, 424, 471 A.2d 1228, 1229 (1984). See also: Commonwealth v. Merrick, 338 Pa. Super. 495, 488 A.2d 1 (1985); Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984).

On the evening of December 31, 1980, appellant and three other persons drove to 48th and Chestnut Streets in Philadelphia, where they parked near an Arco service station. Appellant remained in the automobile with its motor running while the others approached the service station. There, they robbed the attendant at gunpoint and locked him in the bathroom. The men thereupon returned to the car where Ferguson was waiting. Appellant drove to the home of his sister, where the four men divided the money taken from the service station.

This evidence was sufficient to support a finding that appellant had agreed to promote, facilitate and encourage the robbery of the Arco service station and that he had participated actively in committing the robbery. Indeed, it had been he who initiated the criminal activity by suggesting that "he knew where to get some money." Ferguson drove the car, parked it a short distance from the gasoline station, and remained in the automobile with the engine running while his co-conspirators held up the station attendant. "[T]he driver of a 'get away' car can be found guilty . . . if it is reasonable to infer that he was aware of the

[ 358 Pa. Super. Page 102]

    actual perpetrator's intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime." Commonwealth v. Wright, 235 Pa. Super. 601, 605-606, 344 A.2d 512, 515 (1975). See also: Commonwealth v. Perry, 334 Pa. Super. 495, 483 A.2d 561 (1984); Commonwealth v. Azim, 313 Pa. Super. 310, 459 A.2d 1244 (1983); Commonwealth v. Esposito, 236 Pa. Super. 127, 344 A.2d 655 (1975). Here, the ...


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