Commonwealth v. Barker

472 A.2d 1158, 325 Pa. Super. 357, 1984 Pa. Super. LEXIS 4116
CourtSuperior Court of Pennsylvania
DecidedMarch 9, 1984
DocketNo. 556
StatusPublished
Cited by2 cases

This text of 472 A.2d 1158 (Commonwealth v. Barker) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Barker, 472 A.2d 1158, 325 Pa. Super. 357, 1984 Pa. Super. LEXIS 4116 (Pa. Ct. App. 1984).

Opinion

WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas, Criminal Division, of Philadelphia County and involves the defendant-appellant’s appeal from a judgment of sentence of five (5) to twenty (20) years imprisonment after he was convicted by a jury of robbery, simple assault, conspiracy and prohibited offensive weapons.

The evidence produced at trial established that on February 5, 1979 at approximately 3:00 P.M., the defendant entered the Ramo Beauty Products Store at 2228-30 N. 11th Street while Artis Ray, the victim, was talking on the telephone. After observing that the defendant had entered the store, the victim told him he would be with him shortly. Both the fluorescent lights and the daylight enabled the victim to see the defendant clearly at this point. As the victim concluded his phone conversation, the defendant pulled a shotgun from his tote bag and, shoving it into his face, announced a hold-up. He pushed the victim into the rear room of the store and ordered him to kneel. The defendant then hit him on the forehead with the barrel of the gun. The victim fell forward, breaking the frame of his glasses. Defendant knelt next to him and, facing him, threatened to kill him. Defendant then tied him up with clipper cords from the beauty parlor. At that point, a second person entered the rear room of the store and defendant handed him the gun. The second man kicked the [360]*360victim. The defendant then began to tear the victim’s clothes apart in order to determine if he had money in his pockets. The perpetrators searched his wallet and card case and took a dollar bill as well as a blank check which they insisted he complete. Two more men entered the store and were joined by defendant and the second male. The victim watched them fill empty boxes with electric curlers, cords, combs, brushes, and other beauty equipment. Defendant then asked him for the key to his car and joined the others in packing the “loot” in the car. The victim then untied himself as they loaded the car and watched the four figures as they drove away in his 1978 Omega. He called the police immediately to report the robbery. When a policeman arrived, he described the car and license number and recounted the incident to the police.

As a result of several radio calls, the Omega was spotted quickly by the police. When the driver saw the police behind him, he veered into the right front fender of the police car and then, after hitting the rear of a Cadillac, jumped out of the car and ran away, successfully eluding the police.

When the car was finally stopped, Officer James McDevitt discovered a .32 caliber automatic pistol on the seat between defendant, seated in the left rear seat, and co-defendant Wright. Officer Rudolph Meritt observed a blue tote bag between defendant’s legs with a shotgun barrel protruding. The shotgun shells were retrieved from the bag. Finally, the merchandise stolen from the victim’s store was found in the trunk of the car in which the three males had been sitting. Within ten minutes of the call to the police, two groups of males were brought back for identification by the victim. He dismissed the first group but identified the second group of three males, which included defendant, as his assailants. The victim was subsequently taken to the Medical College Hospital of Pennsylvania for examination of the bump on his head caused by the blow from the butt of defendant’s shotgun.

[361]*361On November 29, 1979, the jury returned a verdict of guilty of robbery, simple assault, conspiracy and prohibited offensive weapons.

On appeal, the appellant contends that the trial court erred when it refused to admit into evidence statements of the co-defendants’ given to police shortly after their arrest. Defendant claims that said statements should have been admitted into evidence as declarations against penal interests. In the statements the co-defendants’ implicated themselves in the aforesaid crimes, but claimed that defendant did not commit same, but, rather, was picked up in the automobile by them at a time subsequent to the robbery. Defendant argues that the complete statements of both co-defendants’ should have been admitted at trial. We note that the trial court had given the defendant ample opportunity to produce both co-defendants at his trial. Subpoenas were issued for them and a process server hired to find them, but neither co-defendant could be found by the defendant.1

In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), cert. denied 423 U.S. 1056, 99 S.Ct. 788, 46 L.Ed.2d 645 (1976), a plurality opinion of our Supreme Court held that a declaration against penal interest may contain both exculpatory and inculpatory facts and that only the inculpatory portion of the statement is admissible as an exception to the hearsay rule because of its inherent trustworthiness. See also Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974). In the instant case the portion of the co-defendants’ statements to the effect that they merely met the defendant after the crime had been committed did not constitute an admission to any additional crimes that subject them to any additional penalties. It was not contrary to their penal interests to assert that they and a third companion had acted without the defendant. In Commonwealth v. Ayala, 277 Pa.Superior Ct. 363, 419 A.2d 1187 (1980) we recognized [362]*362the inherent unreliability of a confession exculpating possible accomplices at no cost to the defendant. The portion of co-defendants’ statements exculpating the defendant are not contrary to their penal interests and were therefore properly held to be inadmissible by the court below. We see no valid reason to distinguish the instant case from Colon as the inherent unreliability of such statements is the reason that they have been held inadmissible and co-defendants’ statements in this case are no more reliable than were those with which the Supreme Court dealt in Colon. We hold that the court below ruled correctly when it refused to admit the co-defendants’ statements.

The defendant also claims that the court’s charge to the jury constituted reversible error in that the court charged the jury on an accomplice theory. Defendant argues that the evidence did not support such a charge and that the court failed to clarify the charge. The court charged on accomplice liability as follows:

Now, in this particular case part of the theory under which the Commonwealth is proceeding as a matter of law involves or will require some explanation on my part about the accomplice theory of liability. It means simply this: Because there is reference here to the fact that there were several people involved in this incident, you may find this defendant guilty of the crime of simple assault or robbery without finding that he personally performed the acts or engaged in the conduct required for the commission of the crime. This is what the law calls being responsible for the acts or conduct of your accomplice.
A defendant is still guilty of a crime if he is an accomplice of another person who commits that crime.

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Related

Commonwealth v. Brown
52 A.3d 1139 (Supreme Court of Pennsylvania, 2012)
Risch v. Risch
11 Pa. D. & C.4th 30 (Columbia County Court of Common Pleas, 1989)

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Bluebook (online)
472 A.2d 1158, 325 Pa. Super. 357, 1984 Pa. Super. LEXIS 4116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-barker-pasuperct-1984.