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COMMONWEALTH v. SAWYER (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
SAWYER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1973, No. 7666A, in case of Commonwealth of Pennsylvania v. Curtis M. Sawyer.

COUNSEL

John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellant.

Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

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

Author: Hoffman

[ 238 Pa. Super. Page 215]

Appellant raises two contentions: that he was denied assistance of counsel at his preliminary hearing and that there was insufficient evidence to convict him of aggravated assault.

On November 9, 1973, Leo Vennebush, a driver for the Tube City Cab Company, picked up a fare at 1714 Jenney Lind Street, McKeesport. The passenger, later identified

[ 238 Pa. Super. Page 216]

    as appellant, directed Vennebush to drive to a dead-end street adjacent to Harrison Village, a McKeesport housing project. When Vennebush stopped to let out his fare, the passenger grabbed him around the neck. Vennebush struggled free and knocked a bright metal object from his attacker's hand. After the attacker fled, Vennebush hailed a passing motorist who drove him to a restaurant where he called the police. The police arrived and, upon investigation, found a nine-inch butcher knife on the floor of the cab.*fn1

The appellant was arrested pursuant to a warrant on November 12, 1973, and charged with aggravated assault*fn2 and attempted robbery.*fn3 Four days later, on November 16, appellant received a preliminary hearing. However, he was not represented by counsel at that time. The magistrate did not secure a signed waiver of counsel; nor did he fully inform appellant of his rights at that hearing. Instead, the magistrate merely asked if appellant would proceed without counsel. When appellant acquiesced, the hearing continued and Vennebush identified the appellant.

Thereafter, appellant's counsel filed a motion to suppress the identification evidence. Pursuant to a June 23, 1974 hearing, the court denied appellant's motion and refused to quash the indictment. Appellant was tried by jury on July 1, and July 2, 1974, and was found guilty on both counts. Both issues before this Court were raised in appellant's post-trial motions and were denied by the court en banc on February 12, 1975. On February 14, 1975, appellant was sentenced to a term of three and

[ 238 Pa. Super. Page 217]

    one-half to seven years' imprisonment. ...


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