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COMMONWEALTH PENNSYLVANIA v. ALLEN WHITNER (04/25/80)

filed: April 25, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ALLEN WHITNER, APPELLANT



No. 982 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1315 -1318, 1321, 1322 May Term, 1977.

COUNSEL

Harvey W. Robbins, Philadelphia, for appellant.

Andrew B. Cohn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Van der Voort, Hester and Wieand,*fn* JJ. Wieand, J., files a concurring and dissenting opinion.

Author: Van Der Voort

[ 278 Pa. Super. Page 179]

Allen Whitner was tried before a jury and convicted of robbery,*fn1 unauthorized use of an automobile,*fn2 criminal conspiracy,*fn3 possession of instruments of crime,*fn4 unlawful restraint,*fn5 simple assault*fn6 and aggravated assault.*fn7 On this direct appeal, he makes several averments of error.

[ 278 Pa. Super. Page 180]

On February 17, 1977, at or about 1:00 A.M., Paul Kretovich was entering his parked car when two men approached the driver's side of his vehicle. One of the men, Vanders Richardson, pulled the door open and struck Kretovich several times on the head with a gun. A second man, Allen Whitner, entered the passenger's side so as to sandwich Kretovich between him and Richardson. Richardson passed the gun to Whitner and drove away in Kretovich's car. Kretovich was blindfolded, his wallet was taken, and he was ejected onto the sidewalk approximately three blocks from where he had been accosted. There he was found by a police officer, who took from him and immediately broadcast the descriptions of the vehicle and the occupants. Another officer heard the broadcast, sighted the vehicle and made an attempt to stop it. The occupants of the car, however, refused to stop and drove off at a high rate of speed. When the officer finally overtook the car, he found the occupants gone, the motor running and the doors open.

A subpoena, which had been issued to "Alan Whitman", was observed on the front seat of the vehicle. Police records disclosed that "Alan Whitman" was in fact Allen Whitner. Whitner was also identified by Kretovich from police photographs. A warrant was issued for Whitner's arrest and he was taken into custody. He thereupon gave an inculpatory statement in which he admitted participating in the assault and robbery of Kretovich.

This evidence was clearly sufficient to support the guilty verdicts returned by the jury. Appellant's motion in arrest of judgment, therefore, was properly denied.

The complaint against appellant was filed on February 18, 1977. The original run date, in the absence of exclusions, was August 17, 1977. Two periods, however, were excluded by the trial court. The first period of exclusion allowed by the court was attributable to appellant's unavailability from March 8, 1977 to April 19, 1977, because of hospitalization. Delay caused by appellant's hospitalization is properly excluded. Commonwealth v. Millhouse, 470 Pa. 512,

[ 278 Pa. Super. Page 181368]

A.2d 1273 (1977); Commonwealth v. Quinlan, 259 Pa. Super. 536, 393 A.2d 955 (1978); Commonwealth v. Haynes, 245 Pa. Super. 17, 369 A.2d 271 (1976).

An additional exclusion occurred because of a continuance granted at appellant's request from July 19, 1977 to August 29, 1977. This continuance, being for a period of forty-one days, resulted in an exclusion of eleven days. Pa.R.Crim.P. 1100(d)(2). The suppression hearing, which had been reserved until time of trial, commenced on August 26, 1977. ...


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