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COMMONWEALTH PENNSYLVANIA v. GARY ALLEN PALMER (06/24/83)

filed: June 24, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY ALLEN PALMER, APPELLANT



NO. 279 PITTSBURGH, 1981, Appeal from the Order of January 29, 1981 In the Court of Common Pleas of Armstrong County, Criminal, at No. 0014 & 0034, 1980

COUNSEL

Joseph E. Breman, Kittanning, for appellant.

George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.

Beck, Montemuro and Popovich, JJ. Popovich, J., concurs in the result.

Author: Beck

[ 315 Pa. Super. Page 607]

Gary Allen Palmer appeals from judgment of sentence imposed for robbery and attempted robbery in Armstrong County.

On September 14, 1979, appellant exited a car, driven by David Mardis, while wearing a white pillowcase mask with two eyeholes and carrying a gun. Appellant burst into a service station's office with his gun drawn, ordered two patrons to lie face down on the floor, and announced, "This is a holdup." An employee in the back heard the commotion and alerted the proprietor, who was upstairs. The proprietor ran down to the office, aimed a gun at appellant, and yelled, "I have a gun, too." Appellant swung around, pointed his gun at the proprietor, then fled. The patrons and the proprietor all later testified that the attempted robber was a thin man about six feet tall wearing a white pillowcase mask. Appellant re-entered the car and drove off with Mardis. They soon stopped near a bar, and appellant

[ 315 Pa. Super. Page 608]

    again left the car wearing the mask. He entered the bar, announced it was a holdup, and with his gun drawn ordered the twenty or so patrons to put their hands in the air. He demanded money from the barmaid, and she gave him $217. Appellant then fled. Both barmaids and a patron later testified that the assailant was tall and thin and wearing a pillowcase mask. At trial, Mardis, the victims, and several others testified. Appellant presented an alibi defense. The jury convicted appellant of attempted robbery of the gas station and robbery of the bar.

Appellant contends (1) unconstitutional denial of effective assistance of counsel and absence of knowing and voluntary waiver of that right; (2) denial of fair trial because of improper remarks by the prosecution; (3) erroneous instructions to the jury by the trial court; (4) insufficiency of the evidence to sustain his convictions; and (5) excessive sentence based upon improper considerations and procedure. Finding these contentions without merit, we affirm the judgment of sentence.

At pretrial conference, appellant elected pro se representation, and the court appointed standby counsel in accordance with Pa.R.Crim.P. 318(d). The comment to this rule reads: "With respect to trials in court cases, where the defendant waives the right to counsel and elects to proceed pro se, it is generally advisable that standby counsel be appointed to attend the proceedings and be available to the defendant for consultation and advice. See Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976)."

Appellant now contends that the lower court's colloquy relevant to his waiver of counsel did not adequately inform him of his right to be represented by counsel, of the nature of the elements of the charges, of the possible penalties, or the fact that there may be possible defenses of which counsel may be aware that would ...


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