*1
the driver of either vehicle was negligent.
tion that
It is a
of fact for the
to be determined
from all the
question
of the case. The
must
plaintiff
evidence
resulted from the
negligenсe
collision
defendant.”
Simmons,
also,
Pascale v.
brake hosе immediate Further, failure. the uncontroverted brake testimony mechanics showed that the failure expert impending could not have been detected to the sudden priоr loss of braking result, As a the lower court concluded that power. appellee in the brake negligent failing anticipate was not failure. Moreover, the court fоund that in the few seconds after the failure, acted appellee reasonably attempting brake avoid vehicle the rear. striking appellants’ review of the trial record convinces us that the lower Our did not abuse its discretion in its making findings court we will not disturb the court’s Consequently, conclusions. verdict.
Order affirmed.
HESTER, J., dissents.
SPAETH, J., in the consideration or did of this case. deсision Pennsylvania
COMMONWEALTH GUENZER, Appellant. Richard Pennsylvania. Superior Court June Submitted 12, 1978. July Decided *3 Packel, John W. Defender, Assistant Public and Benjamin Lerner, Defender, Philadelphia, for appellant. Glass,
Steven H. Goldblatt and Deborah E. Assistant Dis- trict and F. Emmett Attorneys, Fitzpatrick, District Attor- Commonwealth, ney, Philadelphia, for appellee. WATKINS,
Before President and Judge, JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge: from
This is an a of sentence of appeal the of Common Pleas of Philadelphia Court Criminal County, Trial Division. was convicted of Appellant theft robbery, extortion and аssault. He was simple sentenced to one to three on the years’ imprisonment robbery charge, years two to probation simple begin on the assault at the of expiration one on charge, year the and robbery on imprisonment the with the assault concurrently run to charge, the extortion probation. that the evidence was insuf- contention is first
Appellant’s No issue a was committed. ficient identification evidence ráised. regarding sufficiency evidence, which we must as accept The Commonwealth’s issuе, the established determining sufficiency true following: Barbara a Lips, middle-aged Ms. March
On a street when she woman, along Philadelphia walking was who appellant, began tug- behind by frоm approached was it and unwilling relinquish was her purse. She ging into the holding purse, still pulled, was consequently to the She street, roadway. and thrown middle muscles, bruises, and and sore scrapes, several suffered screaming continuously a result of developed laryngitis getting succeeded Appellant the incident. during a caught and fled. He was chased from hеr purse bystander. under which appel Code1 Crimes section reads as follows: 3701(a)(l)(ii), charged, Section
lant if, in the course of guilty A “(1) person theft, he: committing him puts with or intentionally thrеatens (ii) another bodily injury.” of immediate serious in fear fear, that she was in we testify Ms. did Although Lips to estab- circumstantial evidence there was sufficient think *4 was injury. fear of serious She she was placed lish that of a street and thrown to the middle into dragged take her purse determined to stranger obviously aby ground offer. Not to fear might resistance she notwithstanding any an a situation would be abnor- such injury serious bodily to Ms. state reaction, remaining Lips’ doubt as any mal at trial screaming, by her described by is removed of mind 334, 3701, 6, 1972, 1482, 18 P.L. No. C.P.S.A. § 1. Act December 6, 3701, June 1973. effective who bystander captured appellant scream- “ungodly ing, steady screaming.” that an intention on
Appellant part claims his to put Ms. in fear His Lips proved. argumеnt was seems to be that wanted and the conduct purse, which caused her fear would not have occurred had she let go at the first tug. We find this argument unconvincing. also contеnds that the evidence was
Appellant insufficient theft extortion. The section of by the Crimes Code 3923, defining offense, Section reads in pertinent part: “(a) ... A of theft if he person guilty intentional- obtains or
ly withholds of another property by to: threatening
(1) injury Inflict or commit anoth- bodily anyone er criminal offense [Emphasis added].”
The extortion statute clearly requires a causal nex the threat and thе victim’s us between surrender of proper Even ty. assuming arguendo appellant’s conduct was a 3923, threat within the no meaning Section nexus was clear from shown here. It is not the rеcord whether Ms. ¿s and let Lips gave up go purse a result of finally overcome fear or whether it was wrested from being her. affect the conviction, does not as the аmbiguity common-law of a nexus between the threat or requirement in fear and the placing deprivation property as to the Crimes Code. Com abrogated, robbery, by See Mays, monwealth v. A.2d Note 1 note in that we doubt the passing applicability at We of the extortion statute to purse-snatchers. the colloquy contends that which he
Appellant trial was defective. This waived his to a issue right motions. The was not raised on defec post-trial allegedly itself, not, in and of a basis for tive is therefore colloquy Blair, reliеf at this point. However, argues also that the
A.2d reflected ineffective assistance of colloquy defect in the true, the absence of mention of the counsel. If this at (which orally in the motions were made post-trial colloquy *5 592 issues) of trial and raised the does sufficiency
the close the us from whether considering colloquy not preclude defective, be to raise the issue of expected as counsel cannot Dancer, Commonwealth v. 460 Pa. own ineffectiveness. his (1975). is that he did not know complaint a Appellant’s specific chosen from mеmbers of the community; was to be jury he the however, colloquy, following the answered during in the affirmative: question that have an absolute to be you right
“Do understand you your tried of 12 of аnd in order for by jury peers, them 12 them to find all must you guilty, unanimously agree of each and and each and guilty every charge are you doubt; element of each a reasonаble charge beyond every understand that?” you do the following own brief includes from
Appellant’s excerpt Williams, 368, 373, v. 454 Pa. 312 A.2d Commonwealth (1973): concept essential basic to the of a ingredients, jury “[The] trial, are the that the be chosen from requirements jury community (a members the of one’s peers), unanimous, and that the be the verdict be accused allowed in the selection of the jury panel.” the better be so elaborate on the practice may While we do not consider a failure meaning “peers,” word to сonstitute ineffectiveness of counsel. do so final contention is that the offenses of
Appellant’s merge. and assault This issue was not raised robbery simple below, error in him оn both convicting counts is waived, Walker, Commonwealth v. concedes. However, the illegality 362 A.2d of a Walker, is not a waivable Commonwealth v. sentence issue. White, Pa.Supеr. 647, supra. we held that a conviction for assault (1977), simple with a conviction under 18 P.S. merges Sec. which is 3701(a)(l)(ii), the section under charged. term for assault simple must Accordingly, probationary be vacated. affirmed;2 and sentence for are judgment affirmed; for assault simple of conviction vacated; for assault simple of sentence
the judgment sеntence for theft extortion reversed are from the theft discharged and appellant extortion charge.
HOFFMAN, J., and would remand for resentenc- dissents Lockhart, v. 223 Pa.Su- on thе basis of Commonwealth ing 60, (1972). A.2d per.
WATKINS, President did not Judge, former or decision of this case. the consideration
Decided Lockhart, (1972) Pa.Super. v. Commonwealth invalidity which a conviction on one count where the holds that apparent, all may of another becomes influеnced the sentence have resentencing for vacated and the case remanded should be sentences on the valid ever, ones.' How consideration of the invalid counts without separate judge imposed on each count. sentences here the trial had negates possibility the assault and extortion counts This sentencing on thе any prejudicial decision effect on the effect, fact, it was reduce charge. had if the other counts robbery, only judge as he should sentenced had the the sentence: done, charge might have been more severe. the sentence on that have been, dealing judge, with unlikely the trial had most It is count, given than the one to of Lockhаrt to less have would application gave years he him. A mechanical three procedural produce would be a “mere a remand that would this case Grant, exercise.”