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COMMONWEALTH PENNSYLVANIA v. KENNETH JOHNSON (04/20/79)

decided: April 20, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH JOHNSON, APPELLANT



No. 1447 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Nos. 338 and 340, May Session, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 265 Pa. Super. Page 419]

Appellant, Kenneth Johnson, was convicted of robbery and criminal conspiracy in a non-jury trial in Philadelphia County. Post-trial motions were filed and denied. Appellant was then sentenced to eleven and one half to twenty-three

[ 265 Pa. Super. Page 420]

    months in prison on the robbery charge to be followed by three years probation on the criminal conspiracy conviction. Due to the inadequate record presented to us, we are forced to remand to the lower court.

One evening in April, 1976, the complainant in this suit stopped at a bar after work. He ordered a drink, placed ten dollars on the bar, then proceeded to the men's room. He testified that he wanted to rearrange a large sum of money he was carrying in order to better conceal it. After a minute or two, six men burst into the men's room where complainant had successfully concealed his money. One man, not the appellant, grabbed the complainant and held him in a "Nelson lock" while the others told the complainant to "give it up." Another man directly in front of the complainant held his hand inside his jacket as if harboring a weapon. Appellant stood behind the man who held his hand in his jacket. After a few moments, the men searched the complainant for money. Just as one found a ten dollar bill, the owner of the bar entered the men's room and the six men fled. All of the assailants left the bar except the appellant who was found seated in a booth with several people. When the complainant accused appellant of participating in the robbery, appellant denied any involvement and a fight ensued.

At trial, appellant testified in his own behalf. His version of the incident was that he had been in the men's room before the complainant had entered. Once he heard the fracas, he attempted to leave the men's room but was stopped by one of the other men who was robbing the complainant. Appellant left the men's room with the assailants, but said he had no reason to flee the bar so he returned to his friends.

Based on this evidence the lower court found appellant guilty of the crimes charged. On appeal, appellant raises two issues for our review: first, whether the evidence is sufficient to support the convictions, and second, whether his right to a speedy trial under Pa.R.Crim.P. 1100 was violated by the Commonwealth's failure to proceed with due

[ 265 Pa. Super. Page 421]

    diligence. Our review of these issues is complicated by the fact that no post-trial motions appear in the record presented to us. Despite our request for a completed record over a ...


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