Commonwealth v. Mason

• Citation: 211 Pa.Super. 328,236 A.2d 548
• Parties: COMMONWEALTH of Pennsylvania v. Lee MASON and Frank M. Durden, Appellees.
• Decision Date: 14 December 1967
• Court: Pennsylvania Superior Court

236 A.2d 548

211 Pa.Super. 328

COMMONWEALTH of Pennsylvania v. Lee MASON and Frank M. Durden, Appellees.

Superior Court of Pennsylvania.

December 14, 1967.

R Jacob, Pittsburgh, for appellant.

B Brown, Pittsburgh, for appellees.

Before ERVIN P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN and SPAULDING JJ.

MONTGOMERY Judge.

This is an appeal by the Commonwealth from the order of the court below sustaining the demurrers of the defendants Lee Mason and Frank M. Durden, on charges of armed robbery and receiving stolen goods. The case was tried before Hon. Arnold D. Smorto, President Judge, specially presiding, without a jury. Although in his opinion, written later, the trial judge states, 'we were treating our decision on the demurrer as a verdict of not guilty', the record and the docket entries show that demurrers were sustained and no verdicts of not guilty entered.

An order sustaining a demurrer to the Commonwealth's evidence in a criminal prosecution is clearly appealable by the Commonwealth. Commonwealth v. Green, 210 Pa.Super. 482, 233 A.2d 921 (1967). The test in determining the validity of a demurrer is whether the evidence of record and inferences reasonably drawn therefrom support a verdict of guilty. Commonwealth v. Dennis, 211 Pa.Super. 37, 234 A.2d 53 (1967); Commonwealth v. Wheeler, 200 Pa.Super. 284, 189 A.2d 291 (1963).

The Commonwealth produced the following evidence. About 2:00 a.m. on November 23, 1966, Robert McGowan stopped for a traffic light in the Borough of Homestead. The defendant Lee Mason approached his car and asked him to drive her to McKeesport. After entering the car Lee Mason asked McGowan if he 'would like to have a good time'. McGowan agreed, paid her $5.00, whereupon she directed him to a vacant double garage on a side street. As McGowan picked up Lee Mason he saw a grey Pontiac Sedan (1962) pass through the intersection and noticed the occupants looking back at his car. McGowan noticed the first number in the Pontiac license plate was a '7' and the last numbers were '11 U'.

McGowan drove his car as directed by Lee Mason into the double garage and proceeded to lock the doors of his car but when his companion objected, he unlocked them. They then sat in the back seat of the car and engaged in sexual intercourse. During this engagement four men appeared, two on each side of the car. The men opened the door of the car and one, identified as Bo Brown, held a six inch knife blade at McGowan's throat, demanding his wallet. McGowan had no wallet but emptied his pockets of $16.00, and gave the men the keys to the car. Although the car had no dome light, the victim was able to see the robbers from the street light outside. The victim testified that Bo Brown gave the knife to Frank Durden, who held the knife on him while two of the other robbers cleaned out the trunk of his car and transported the articles to the 1962 Pontiac. McGowan again noticed the first and last numbers of the license plate as '7 * * * 11 U'. Lee Mason was allowed to leave the car as the men came on the scene. In the process of robbing McGowan, Brown and Durden beat him severely.

Just before the incident Homestead observed Durden in his 1961 Pontiac, bearing license No. 77511U, parked across the street from the corner where McGowan picked up Lee Mason and saw it follow McGowan's car. A detective of the McKeesport police testified that following a police report, he observed Durden driving the Pontiac, license No. 77511U on November 25, 1966. Durden was later arrested as he approached this parked car, in which Lee Mason was then seated.

McGowan positively identified Lee Mason and testified that after examining police photographs he was ninety per cent sure of Durden's identity, but that at the trial he was one hundred per cent sure. The court below sustained the demurrer, apparently, largely on the alleged weakness of the victim's identification as to the defendant Durden. In substance, McGowan was only ninety per cent sure of his identification of Durden at the preliminary hearing, although he made positive identification at the...