Commonwealth v. Wilson , 294 Pa. Super. 101 ( 1982 )

WATKINS, Judge:

In this appeal the defendant contends that the court erred in denying his motion in arrest of judgment.

The defendant was found guilty after a trial by jury of robbery, theft, recklessly endangering the life of another person, violations of the Uniform Firearms Act and criminal conspiracy. Post-trial motions were filed, his motion for a new trial was granted and his motion in arrest of judgment was denied. He appeals from this denial.

Two questions are involved in this appeal: (1) defendant’s contention that the evidence was insufficient to sustain the guilty verdict; and (2) that Pa.R.Crim.Pro. 1100 was violated.

On January 22, 1979, the defendant, Andre Wilson, entered Spain’s Gift Shop in the Cheltenham Mall. He was met by the cashier, Molly Gartner, who was helping him select greeting cards and who did not testify due to illness. The store manager, Jean Meadows, together with Gartner, waited on him. A saleslady, Geraldine Dinter, testified that between 11 and 11:30 a. m., his actions in walking about the store were suspicious and made her nervous. He left the store. The witnesses then saw a short, black man, never identified, with his arm around Ms. Gartner’s waist brandishing a pistol. At the same time she saw the defendant who had reentered the store standing near the cash register. Ms. Dinter, Meadows and Gartner were forced by the gunman to lie on the floor and cover their faces. They heard the cash register open and money being taken out.

Another witness coming into the store was met by the gunman leaving and he took her handbag. A fourth witness testified that the defendant brushed passed her in leaving the store quickly at the same time.

The police were called and $88 was found to be missing, as well as the witness’ handbag containing cash and credit cards. Less than 3 hours later the defendant was arrested, credit cards, money and clothing were taken from him. The credit cards were suppressed. The money consisted of 52-one dollar bills.

Mere presence at the scene of the crime is not alone sufficient to convict. Commonwealth v. Mitchell, 270 Pa. Superior Ct. 146, 411 A.2d 221 (1979). Nor is flight alone sufficient. Commonwealth v. Roscoli, 454 Pa. 59, 309 A.2d 396 (1977). But those factors taken together in conjunction with other circumstantial evidence may provide a sufficient basis for conviction. Commonwealth v. Dennis, 236 Pa. Superior Ct. 348, 344 A.2d 713 (1975). See also, Commonwealth v. Viall, 278 Pa. Superior Ct. 613, 420 A.2d 710 (1980).

The defendant was in the store in the vicinity of the cash register when the gunman entered. His conduct was suspicious. He left the store at the same time as the gunman. The gunman ordered everybody on the floor but the defendant. He was arrested a short time after the theft and found in possession of 52-one dollar bills. The direct and circumstantial evidence taken as a whole are sufficient to sustain the verdict and the court below did not abuse its discretion in denying the motion in arrest of judgment.

Defendant claims that he did not knowingly waive Rule 1100 and, as the burden is on the Commonwealth to show a knowing and intelligent waiver which he alleges the state failed to show, he is entitled to discharge.

The facts are that the defendant signed a motion for trial postponement on June 15, 1979 with the advice of his counsel. The Commonwealth has the burden to establish that the waiver of Rule 1100 was knowingly, intelligently and voluntarily made. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979); Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977). However, in Commonwealth v. Myrick, 465 Pa. 288, 349 A.2d 910 (1976), it was held that a waiver signed by the defendant is a sufficient record that the waiver was prima facie evidence of an informed and voluntary action. The defendant failed to offer any testimony at the hearing of March 27, 1980 that the signed motion for trial postponement was signed involuntarily and without knowledge. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

Order affirmed.

POPOVICH, J., files a dissenting opinion.