Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No: 8608-1190-1195.
John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Del Sole, Tamilia and Cercone, JJ.
[ 386 Pa. Super. Page 101]
Appellant was tried by the court without a jury on May 20, 1988 and found guilty of robbery as a felony of the first
[ 386 Pa. Super. Page 102]
degree, firearms violations, theft, conspiracy, recklessly endangering another person, terroristic threats and simple assault. She was sentenced to the mandatory five years imprisonment under 42 Pa.C.S. § 9712, Sentences for offenses committed with firearms.*fn1 On appeal she claims the trial court erred in applying this statute to her as she was only an accomplice and never actually "visibly possessed" the weapon. She further argues the evidence was conflicting as to whether the gun was used during the commission of the offense or merely confiscated from the victim during the robbery.
The incident occurred in the early morning hours of July 30, 1986 when Mr. Logue, complainant, saw appellant at Bostas Pizza Shop requesting a ride from various patrons. The owner asked Logue to give her a ride and he agreed to do so. After making two phone calls, appellant asked Logue to take her to 46th and Market Streets where friends would pick her up. Logue, a retired police detective, carried a gun holstered to his waistband and kept his cash in two separate pants pockets.
Logue drove appellant to the desired location and pulled the car off the road for appellant to get out. When she opened the passenger door, however, a male voice outside the car by her door yelled, "Don't move m[/--]-f[/--], or I'll blow your brains out!" (T.T. 5/20/88, p. 40.) It was too dark outside for Logue to see the man who had yelled. Logue was then told to hand over all his money, so he pulled cash from one of his pockets and handed it to appellant who in turn handed it to the man outside. Appellant then said, "He's got more f[/--] money than that,"
[ 386 Pa. Super. Page 103]
and "He's got a gun." (T.T. at 43-44.) Appellant took the gun and gave it to the man. At that point the man outside the car reached in with Logue's gun, cocked it and pointed it at Logue's face, demanding he get out of the car and put his hands on the door. Logue did so and someone came behind him and took the rest of his money out of his pockets. Appellant and another woman who had been with the man then fled down the street with the man following behind but watching Logue to see if he would turn to look at them. Logue did turn around when he heard their footsteps running away and the man fired a shot at him.
Appellant first tries to argue that the gun taken from Logue was not used to accomplish the robbery but was simply "proceeds" from the robbery. This is without merit because Logue's testimony was unequivocal that after his gun was taken by appellant, her cohort put the gun in Logue's face and ordered him out of ...