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COMMONWEALTH v. IRBY (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
IRBY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, No. 1318, in case of Commonwealth of Pennsylvania v. Larry Richard Irby.

COUNSEL

Charlotte A. Nichols, for appellant.

John H. Isom, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Spaeth, J., concurs in the result.

Author: Watkins

[ 230 Pa. Super. Page 319]

This is an appeal from the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Larry Richard Irby, after conviction of carrying a concealed deadly weapon. He was indicted on four bills of indictment: (1) attempts with intent to kill and murder; (2) assault and battery, aggravated assault and battery, assault and battery with intent to murder; (3) playfully and wantonly pointing a firearm; and (4) carrying a deadly weapon unlawfully, carrying a firearm without a license on public streets or property. The case was tried non-jury and a verdict of not guilty was entered on the first three bills and guilty on the fourth. He was sentenced to serve imprisonment for not less than nine (9) months nor more than three (3) years.

The appellant and two other men were stopped by the Philadelphia police after a high-speed chase in a stolen vehicle. There was a discrepancy between the driver's license and owner's card submitted by the driver and a gun battle began between the occupants of the vehicle and the police. One of the occupants of the car was captured immediately. Another was

[ 230 Pa. Super. Page 320]

    found wounded in the street several minutes after the shoot-out. A policeman was shot and seriously wounded. The appellant ran away from the scene. A black, chrome-handled .32 caliber revolver was found on the street in the immediate vicinity where the appellant was last seen in his flight.

The appellant was arrested in the State of Michigan, waived extradition and was returned to Pennsylvania. After being advised of his constitutional rights, he gave the police a statement which exculpated him from any part of the shooting but admitted possession of the described revolver.

At trial, the appellant's statement was admitted into evidence without objection. The trial judge in his opinion stated:

"The Trial Judge has not had his attention directed to any alleged error in the course of the trial, and has, therefore, sifted the record painstakingly to determine the possibility of the existence of any prejudicial error, as well as to determine the sufficiency of the evidence beyond a reasonable doubt to support defendant's conviction.

"After careful review of the record in this case, the Court is unable to find any error sufficient to require the granting of a new trial, and in addition, finds all of the evidence sufficient ...


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