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COMMONWEALTH PENNSYLVANIA v. ARNOLD ERBY (12/07/79)

filed: December 7, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ARNOLD ERBY, APPELLANT



No. 2989 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, as of Nos. 1050-52, March Term, 1978

COUNSEL

Robert S. Robbins, Philadelphia, for appellant.

Lee M. Kaplan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Hoffman and Catania, JJ.*fn*

Author: Catania

[ 272 Pa. Super. Page 470]

Arnold Erby was convicted of robbery and possessing an instrument of crime generally. This was a conviction before a judge sitting without a jury in Philadelphia County. The trial judge sentenced Mr. Erby to three to ten years on the robbery conviction and two and a half to five years on the bill charging possession of an instrument of crime. The defendant has raised three issues on appeal, namely:

[ 272 Pa. Super. Page 4711]

. Defendant believes that his motion raising Rule 1100 should have been granted; and,

2. Defendant believes that the sentence imposed by the Court is illegal as he contends that there is no explanation on the record below setting forth the reasons of the trial judge for his sentence; and,

3. The defendant believes that the findings of the trier of fact were against the weight of the evidence.

As to the Rule 1100 issue, the defendant asserts that he was tried 198 days after an arrest warrant was issued. The defendant points out that the warrant was issued on February 25, 1978 and the trial was held on September 12, 1978. The defendant further points out that he was arrested on March 11, 1978. The defendant frames the crucial issue involved as being whether or not the time period between February 25, 1978 and March 11, 1978 was excludable time due to the unavailability of the defendant. The lower court made a finding that the Commonwealth exercised due diligence in attempting to serve the warrant during that period between February 25th and March 11th, 1978. The matter was pled and therefore preserved below, there having been a hearing concerning the Rule 1100 issue on September 7, 1978.

The evidence in the trial below indicates that on January 30, 1978, the defendant grabbed the complainant, Darrell Strayhorn, who was delivering pizza for his employer, Baltimore Pizza, when he was accosted next to his car and dragged across the street and robbed at gunpoint. On February 25, 1978, the complainant advised the police that he recognized the man who had robbed him on January 30, 1978 and directed the police to the residence of the defendant. The police immediately went to that residence on February 25, 1978 and were unsuccessful in locating the defendant at his residence. The police officer testified that the people at that house only knew the man by the name of ...


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