Commonwealth v. Miller , 229 Pa. Super. 123 ( 1974 )

Opinion by

Cercone, J.,

The instant appeal arises from the lower court’s finding the defendant guilty of simple robbery. Defendant contends that the evidence was insufficient to support the verdict. We disagree.

The facts of the case, read in the light most favorable to the Commonwealth, are as follows: During the morning of September 4, 1971, one officer McNamara had stopped his private car for a red light, when he observed a black male approach the victim from behind, spin her around and snatch her purse. He followed the flight of the culprit, and saw him enter the passenger side of a waiting vehicle which was double parked just around the corner from the scene of the crime. The officer noted the year, make, model, color and license number of the “getaway car,” and followed it onto the expressway where he lost it in traffic. During the course of following the car in which the assailant was riding, Officer McNamara had two opportunities to get a good look at the driver’s face. These opportunities provided the basis for the Officer’s in-court identification of the defendant as the driver of the car. The defendant was apprehended as a result of the police tracing the registration of the car described by Officer McNamara. The purse-snatcher, himself, has never been apprehended.

Defendant asserts that on the basis of the case of Commonwealth v. Bailey, 448 Pa. 224 (1972), he should be exonerated from guilt. While Bailey is similar to the instant case in that the trial resulted in the conviction of Bailey on the theory that he acted as the “getaway” driver, and therefore was an accessory before the fact, that case differs from the case now under consideration in several material aspects.

In Bailey, supra, the defendant Bailey was seen driving a car in which the thief was a passenger a few minutes after the theft. Although Bailey in that case drove off when an employee of the victimized company approached, there was no other evidence to establish that Bailey knew the crime had occurred or that he had been waiting for the thief. In Bailey, the Supreme Court in reversing the conviction said: “There was no proof brought forth which established Bailey was aware the crime had been committed, or that he was aware the man in the back seat had committed the crime. The record does not support the conclusion the stolen property was in the car, or Bailey ever saw the man seated in the back seat in possession of the stolen property.”

In the instant case, however, all these facts are readily inferable from the testimony of the off-duty police officer who saw the crime being committed. He observed a black male come up behind the complainant, spin her around, knock her down, and run off with her pocketbook. He saw this man run straight for defendant’s car which was less than one block in distance from the scene of the purse snatching, and was double parked with defendant behind the wheel and another passenger in the rear seat. The unidentified thief jumped in on the passenger side, whereupon defendant drove away. Here, unlike Bailey there was no break in the chain of events observed by the police officer, both in time or proximity from the scene of the crime.¹ To apply Bailey herein in an effort to discharge the defendant is tantamount to holding that a defendant may not be convicted solely upon circumstantial evidence.²

Judgment of sentence of the court below is affirmed.

1 In Bailey, it was only shown that the defendant was seen in the company of the alleged felon, in the vicinity of the crime, and at a later time.

2 See, e.g., Commonwealth v. Cimaszewski, 447 Pa. 141 (1972) ; Commonwealth v. Sullivan, 445 Pa. 616 (1971) ; Commonwealth v. Slavik, 437 Pa. 354 (1970) ; Commonwealth v. Thomas, 429 Pa. 227 (1968). See also Commonwealth v. Bailey, 448 Pa. 224, 227 (1972), where the Court expressly noted that this long-standing principle was not disturbed by their holding therein.