No. 02794 Philadelphia, 1982, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1299, 1300-1302 June Term, 1978.
Robert M. Fellheimer, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wieand and Hester, JJ.
[ 336 Pa. Super. Page 175]
Appellant was convicted December 8, 1978 of simple assault, burglary, robbery and recklessly endangering another person. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of from 3 to 10 years. The court agreed to reconsider the sentence
[ 336 Pa. Super. Page 176]
and on March 7, 1979, the sentence was reduced to 11 1/2 to 23 months to be followed by 10 years probation, a substantial reduction of the original sentence of from 3 to 10 years. Understandably, appellant did not appeal the reduced sentence.
He was paroled June 15, 1979, 100 days following sentence, receiving credit for time served. He was then arrested on January 9, 1980, for robbery, theft, simple assault, and other charges. The charges were dismissed when the complainant failed to appear. On November 20, 1980 he was arrested and charged with robbing a cab driver at gun point. He was convicted of this charge May 15, 1981. On November 18, 1981, a hearing was held wherein appellant was found to be in violation of his probation and was sentenced to from 10 to 20 years on the robbery count, and 10 to 20 years on the burglary count, to run concurrently. As Judge Caesar pointed out during the violation of probation hearing:
Mr. Kirby, at 21 years of age, has a record of 22 juvenile arrests with 12 convictions. His first arrest was at the age of nine. These included robberies and committments (sic) to institutions on several occasions. As an adult, he had 17 arrests and five convictions. I note, of course, that he's been an adult only three years and he's spent the last year in jail.
Appellant instituted post-conviction relief proceedings April 21, 1980, alleging he was denied the right to appeal his conviction and reduced sentence of 11 1/2 to 23 months, that trial counsel was ineffective, and that ...