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COMMONWEALTH PENNSYLVANIA v. HARRY A. LAYMAN (02/11/81)

submitted: February 11, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
HARRY A. LAYMAN, APPELLANT



No. 642 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Fayette County, Criminal Division, at No. 655 of 1977

COUNSEL

Thomas P. Ruane, Jr., Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Brosky, DiSalle and Shertz, JJ. Shertz, J., concurs in result.

Author: Brosky

[ 290 Pa. Super. Page 246]

Appellant was found guilty by a jury of robbery and theft by unlawful taking on June 9, 1978. A motion to dismiss was filed pursuant to Pennsylvania Rule of Criminal Procedure 1100 (hereinafter Rule 1100) and denied. Appellant was ordered to pay the costs of prosecution, make restitution and was sentenced to not less than four years and not more than eight years imprisonment. Post-verdict motions were

[ 290 Pa. Super. Page 247]

    also filed and subsequently denied. This appeal followed. We affirm the decision of the trial court.

Layman claims the trial court erred on five separate grounds. First, he asserts Rule 1100 was violated. Second, he remonstrates that a search warrant used by police was insufficient because it was not based upon sufficient probable cause. Third, he states the arrest warrant lacked probable cause. Fourth, he contends "a mistrial should have been granted based on the Commonwealth's failure to provide an adequate bill of particulars listing all witnesses to be called for trial[.]" Appellant's brief, page 2. And, fifth, he asserts the trial court improperly denied appellant's request to seek certain questions of veniremen.

Appellant's convictions stem from the following facts. On June 5, 1977, a robbery occurred at Melvin's Service Station in Perryopolis, Pennsylvania. The appellant allegedly was confronted by an employee of Melvin's Service Station at a "pop machine" in front of the station. Layman, according to the testimony of the attendant, held a revolver in one of his hands. The attendant then went to pump gas for a customer. While he returned to the service station building, he noticed the appellant was no longer outside of it. The attendant went inside the building and was apparently confronted by the appellant who is reputed to have said, "This is a stick up." The attendant gave him what money he had in his pockets. The attendant stated he was then forced out and away from the service station. The attendant did not claim he saw appellant return to or enter the service station. He did state that he called the police and the station owner to report the events. Appellant was apprehended at a subsequent time. The attendant identified the appellant during the trial.

First, appellant claims Rule 1100 was violated. Layman was arraigned on June 23, 1977. Thus, his trial would need to be scheduled on or before December 20, 1977. However, on September 5, 1977, appellant's counsel requested a continuance until December 5, 1977, for the trial court's December session. The continuance was granted and the

[ 290 Pa. Super. Page 248]

    case was ordered for trial on December 14, 1977. Thus, the continuance was ordered for at least 91 days. Under Rule 1100(d)(2), 61 days of this continuance are excluded from calculations. Rule 1100(d)(2) states:

(d) In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

(1) . . .

(2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.

(Emphasis added.)

Appellant also presented several motions to suppress evidence which were denied on December 14, 1977. In response, presumably, to the court's decision, Layman pleaded guilty. This plea was withdrawn on April 24, 1978. Thus, an additional 131 days delay was caused by the unavailability of appellant for trial. These days are excluded pursuant to Rule 1100(d)(1) which states:

(d) In determining the period for commencement of trial there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:

(1) the unavailability of the defendant or his attorney; . . .

Therefore, 192 days may be excluded from the Rule 1100, 180 day period. Thus, while the appellant's trial did not occur until June 8, 1978, 350 days after the Rule 1100 commencement date, 192 of those days are excludable, Rule 1100(d). Therefore, the trial commenced 158 ...


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