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filed: January 14, 1983.


No. 143 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Adams County at No. CC-80-79.


Robert L. McQuaide, Gettysburg, for appellant.

Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellee.

Brosky, McEwen and Beck, JJ.

Author: Mcewen

[ 309 Pa. Super. Page 418]

We here consider an appeal from the judgment of sentence imposed after appellant was convicted by a jury of conspiracy to commit robbery and acquitted of the charge of robbery. We affirm.

Appellant was convicted on the basis of the testimony of Brenda Ramos, who implicated him as a co-participant with her and co-defendant, John Shenk, in an unsuccessful attempt to rob a diner in Gettysburg. Ramos, herself, was arrested shortly after the robbery attempt, subsequently

[ 309 Pa. Super. Page 419]

    pleaded guilty to one count of robbery and testified on behalf of the Commonwealth at the consolidated trials of appellant and co-defendant John Shenk. A review of the testimony presented by the Commonwealth witnesses, Brenda Ramos and Corporal Hofe of the Gettysburg police, who arrested her shortly after the robbery, is helpful to our study of the issues presented by appellant.

Brenda Ramos testified that she was a friend of the appellant's co-defendant, John Shenk, and was, at the time of the robbery, living in the Shenk home in Gettysburg. On the evening of December 4, 1978, she accompanied Shenk to a mobile home in Gettysburg where appellant resided. After arriving at the mobile home, appellant, Shenk, appellant's roommate and she were drinking and engaged in a discussion of a proposal by Shenk that they commit a robbery. After the roommate of appellant retired to bed, Ramos testified that she, appellant and Shenk departed the mobile home and walked around the town of Gettysburg before proceeding toward the Lincoln Diner. Appellant and Shenk momentarily left her, approached the diner, looked in the windows to determine how many people were present and then rejoined Ms. Ramos. Ramos testified that, after a brief wait, Shenk handed her a gun and she crossed the street, went into the diner, pulled the gun out of her pocket, pointed it at a woman behind the counter and demanded money. When the woman called the police, Ramos left the diner, returned to the waiting Shenk and appellant and handed Shenk the gun before fleeing the area with appellant. She was thereafter apprehended by Corporal Hofe of the Gettysburg police, charged with two counts of robbery as well as a count of carrying a firearm without a license and pleaded guilty to one count of robbery.

Corporal Michael Hofe of the Gettysburg police, the only other witness presented at trial by the Commonwealth, testified that he arrived at the scene of the robbery and observed two persons, one of whom he believed was Brenda Ramos, and the other, a male Caucasian, running near the Lincoln Diner shortly after the robbery was attempted.

[ 309 Pa. Super. Page 420]

Corporal Hofe arrested Brenda Ramos within several blocks of the scene. While the male was not apprehended, Corporal Hofe testified that his height, hair color and length, and his physical characteristics were identical to those of appellant.

Appellant was charged some three months after the robbery at the diner and, following his conviction, was sentenced to a term of imprisonment of one to four years.

Appellant first contends that the Commonwealth failed at the Rule 1100 extension hearing to prove due diligence as required by Pa.R.Crim.P. 1100(c)(3) and that, therefore, the court erred when it granted the petition of the Commonwealth for an extension of time within which to commence trial. The prosecution of appellant was initiated when the complaint charging him with robbery and conspiracy was filed on March 14, 1979. The Rule 1100 rundate was September 10, 1979. The trial commenced on September 19, 1979, 189 days after the filing of the complaint. The Commonwealth filed a petition for an extension of time on June 15, 1979, well within the 180 day period, alleging that, despite due diligence, the Commonwealth would be unable to try the defendant within the prescribed period for the reason that the trial list for the June term was such that the case could not be scheduled. The petition of the Commonwealth requested that the time be extended through the commencement of the next criminal trial term on September 17, 1979. At the hearing held on the petition for an extension, both counsel for appellant and counsel for the co-defendant John Shenk joined in a stipulation with the District Attorney that all cases scheduled for trial during the May and June 1979 terms of criminal court had Rule 1100 rundates which would expire prior to the rundate ...

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