NOS. 2542 and 2543 PHILADELPHIA, 1980, Appeal from the judgments of sentence of the Court of Common Pleas of Philadelphia County of December 12, 1980 at Nos. 1484-1485 September Term, 1977 to run concurrently with the Order of the Court of Common Pleas of Philadelphia of October 9, 1980, at Nos. 1484-1485, September Term, 1977.
Marilyn J. Gelb, Philadelphia, for appellant.
David L. DaCosta, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Beck and Johnson, JJ. Spaeth, J., concurs in the result.
[ 313 Pa. Super. Page 311]
Appellant Charles Azim appeals nunc pro tunc from judgments of sentence imposed for criminal conspiracy and robbery. He seeks dismissal of all the charges brought against him. In the alternative, he requests a new trial on
[ 313 Pa. Super. Page 312]
a lesser charge of robbery and a vacating of the conspiracy sentence, for resentencing following the outcome of the new robbery trial.
Appellant was arrested, along with Mylice James and Thomas Robinson, on September 18, 1977 for simple assault, robbery, and conspiracy. The victim of the robbery was Jerry Tennenbaum, a Temple University student. Appellant drove a car in which the other two men were passengers. Appellant stopped the car, Robinson called Tennenbaum over to the curb, the two passengers got out of the car, inflicted bodily injury on Tennenbaum, took his wallet which had fallen to the ground, and immediately left the scene in the same car driven by appellant. Robinson and appellant were tried to a jury and convicted as co-defendants in April 1978. After denial of post-trial motions, appellant was sentenced to five to ten years for robbery and five to ten years for conspiracy, the sentences to run concurrently. He received a suspended sentence for assault.
Appellant's trial counsel did not file a timely appeal on his behalf and on January 25, 1979 he filed a pro se Petition under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. claiming ineffective assistance of counsel on the grounds, inter alia, of failure to file an appeal of the conviction. New counsel was appointed, and on October 9, 1980, appellant was granted the right to appeal, nunc pro tunc. The PCHA Petition raised other issues relating to ineffectiveness of counsel which were denied at the PCHA hearing. The direct appeal and the appeal under PCHA are here consolidated.
Appellant's co-defendant Robinson also appealed from the judgment of sentence. In January 1980 this Court vacated judgment of sentence and remanded for a new trial on the charges of simple assault and robbery; affirmed judgment of sentence on the charge of conspiracy, and remanded for resentencing on conspiracy. Commonwealth v. Robinson,
[ 313 Pa. Super. Page 313284]
Pa. Super. 152, 425 A.2d 748 (1980). On July 29, 1981, the trial judge ordered similar ...