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COMMONWEALTH PENNSYLVANIA v. DAVID J. MALLON (07/03/80)

filed: July 3, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID J. MALLON, APPELLANT



No. 194 October Term, 1979, Appeal from Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. 2234, 2236.2 September Term, 1969.

COUNSEL

Arthur J. King, Assistant Public Defender, Norristown, for appellant.

John J. Burfete, Jr., Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Hoffman, J., concurs in the result.

Author: Cercone

[ 279 Pa. Super. Page 353]

Appellant takes this appeal from the judgment of sentence entered following his conviction, on a jury verdict, of robbery with an offensive weapon,*fn1 burglary,*fn2 conspiracy,*fn3 violation of the Uniform Firearms Act*fn4 and wantonly pointing a firearm.*fn5 Appellant raises several issues, all of which are discussed more fully below. However, none of appellant's issues have merit, therefore, we affirm.

[ 279 Pa. Super. Page 354]

On September 21, 1969 at approximately 5:30 a. m., two men robbed the Sheraton Inn in Fort Washington, Pennsylvania, at gun point. The two robbers approached Gennaro A. Signore, an employee of the inn, who was alone at the time, and demanded that he empty the cash drawer. Both men had guns and one of these men, later identified as appellant, David J. Mallon, held a gun to Signore's head. The robbers were not satisfied with the $400.00 that was in the cash drawer and ordered Signore to lead them to the safe. Signore complied and appellant stayed with Signore near the safe while the other robber returned to the cash drawer. Instead of attempting to break into the safe, appellant ordered Signore to turn over his wallet, which Signore did without protest. The scene of the crime had been well lighted, and Signore was able to describe the robber who had taken his wallet as being Caucasian with light colored hair, who wore a suit, stood approximately six feet tall, and weighed roughly 190 pounds.

Subsequently, on October 3, 1969, at Philadelphia Police Headquarters, the victim, Signore, was shown between 50 and 80 slides of different individuals. After Signore had viewed about three-fourths of the slides, he saw one which he thought "looked familiar." This was a picture of appellant. The victim viewed the remainder of the slides, but did not identify anyone. Thereupon, the police showed the victim a photograph of appellant which was taken more recently than the slide. Signore looked at the photograph and positively identified it as being a picture of one of the gunmen. Appellant was arrested and, on October 20, 1969, appellant was put in a line-up in the presence of his attorney. Signore identified appellant in the line-up as being one of the men who committed the robbery.

Originally, appellant's trial was scheduled for June, 1970, however, trial had to be postponed because at that time appellant was in prison in New Jersey. While he was in prison, Pennsylvania obtained custody of appellant under the Interstate Agreement on Detainers Act.*fn6 Trial commenced

[ 279 Pa. Super. Page 355]

    on September 27, 1971, and guilty verdicts were returned that same day. At the conclusion of trial, the court postponed sentencing pending the disposition of post-verdict motions. Appellant then asked the court to transfer him back to New Jersey because he didn't like the Montgomery County jail, claiming it was "cruel and unusual punishment" to make him stay there and informed the court that he was willing to waive his rights under the Interstate Agreement on Detainers Act. Prior to the disposition of appellant's post-verdict motions on October 1, 1971, appellant was returned to New Jersey. After appellant's post-verdict motions were denied, Pennsylvania sought to have appellant returned from New Jersey for sentencing, but appellant now refused to return, arguing that Pennsylvania had violated Article IV(e) of the Interstate Agreement on Detainers Act. Thereafter, appellant unsuccessfully fought his return to Pennsylvania in the New Jersey courts when the New Jersey appellate court, on January 2, 1974, ruled that appellant must be returned to Pennsylvania.*fn7

Appellant first argues that the lower court erred in denying his pre-trial motion for a continuance which appellant said he needed so that he might have more time to locate defense witnesses. The trial judge, in a well-written and thorough opinion, notes that appellant asked for the continuance ostensibly to procure the presence of a fourth alibi witness. The granting or denial of a continuance is a matter within the discretion of the court, which ruling will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Morgan, 265 Pa. Super. 225, 401 A.2d 1182 (1979); Commonwealth v. Hughes, 264 Pa. Super. 118, 399 A.2d 694 (1979). Furthermore, when a continuance is sought for the purpose of obtaining the ...


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