Commonwealth v. Ross

375 A.2d 113, 248 Pa. Super. 312, 1977 Pa. Super. LEXIS 2041

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 698
• Status: Published

Opinions

CERCONE, Judge:

This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County. Appellant was convicted, after a non-jury trial, of robbery and conspiracy. Motions for a new trial and arrest of judgment were denied and appellant was sentenced, on June 6, 1974, to one to ten years imprisonment on the robbery charge. On February 24,1975, he filed a petition under the Post-Conviction Hearing Act, with the result that he was granted the right to appeal nunc pro tunc.

The sole question presented is whether the evidence is sufficient to sustain the conviction. The test of sufficiency is whether, accepting as true all the evidence and all reasonable inferences therefrom upon which the verdict could have been based, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Smith, 447 Pa. 457, 463, 291 A.2d 103 (1972).

The Commonwealth’s evidence showed that on September 14, 1973 appellant and a companion drove into a gasoline station located at Broad and Bainbridge Streets in Philadelphia. They borrowed a tire iron from the manager for the purpose of changing a flat tire. After they had changed the tire, and while appellant’s companion was returning the tire iron, a man subsequently identified as Odine Bradley walked past appellant’s car into the station, robbed an attendant at gunpoint, and walked away. Appellant’s companion watched the robbery then returned to the car, which “shot out of the gas station,” although in a different direction from that in which Bradley had departed. The manager called the police. The attendant, suspecting that the men in the car had been “trying to look out for” the robber, gave the police a description of the car. The conclusion that appellant and his companion were accomplices was based in part on the conduct of appellant’s companion, who loitered suspiciously in the gas station after returning the tire iron, until Bradley appeared. The description of the car was broadcast, and about an hour later, it was sighted and stopped and appellant was arrested. He made a statement at the police station which the investigating officer paraphrased as follows:

“He said that the car was his, and he had been at the gas station with a flat tire. He said that his lug wrench did not fit, and one of the men with him borrowed a wrench from the attendant and they changed the tire. After the tire was changed, Odine Bradley held up and robbed the attendant, and they fled in his car and went to the house at 2020 Ellsworth Street. He said the other man with them was Stan Fox, and that both of them were in the house at Ellsworth Street waiting for him to return. He said that to hurry up before they leave the house and to be careful of Bradley because he had a gun.”

The police proceeded to the Ellsworth Street address, where they found and arrested Bradley and Fox. They also seized a .38 revolver.

Appellant took the stand at trial and denied ever having made the statement, claiming he was chained and beaten by the police — a claim he had never previously made. His testimony was otherwise ambivalent concerning the passengers in his car at the time he was arrested,¹ and was contradictory concerning how the police found out about his accomplices at the Ellsworth Street address. The trial judge, as the fact-finder, acted well within his discretion in determining that appellant’s testimony was false.

The Commonwealth apparently relies on 18 Pa.C.S. 306,² which provides that:

“(b) A person is legally accountable for the conduct of another person when:

(3) he is an accomplice of such other person in the commission of the offense.

(c) . . . A person is an accomplice of another person in the commission of an offense if;

(1) with the intent of promoting or facilitating the commission of the offense, he:

(ii) aids or agrees or attempts to aid such other person in planning or committing it . . . ”

In the instant case all the evidence and the inferences properly arising therefrom are sufficient to support the conclusion that appellant was the driver of the getaway car used in connection with the robbery. As such, appellant aided and abetted in the commission of the robbery. Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975).

Judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.

1 . The passengers were not involved in the robbery. Appellant once testified that his female passenger blurted-out the whereabouts of Bradley and Fox, in attempting to explain how the police learned they were at 2020 Ellsworth. At another point appellant testified that the passengers were strangers whom he had met in a bar and had offered to take home.

2 . Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973.