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COMMONWEALTH PENNSYLVANIA v. BARBARA J. PERRY (03/06/84)

submitted: March 6, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
BARBARA J. PERRY, APPELLANT



No. 2155 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County at No. 620 Criminal 1981.

COUNSEL

J. Wesley Oler, Jr., Carlisle, for appellant.

John M. Eakin, District Attorney, Carlisle, for Commonwealth, appellee.

Wickersham, Montemuro and Montgomery, JJ.

Author: Wickersham

[ 334 Pa. Super. Page 497]

OPINION

Appellant Barbara J. Perry and her husband, Craig, were arrested and charged with robbery and conspiracy on July 30, 1981. On December 10, 1981, appellant was found guilty by a jury on one count each of robbery and conspiracy. On December 14, 1981, her husband also was found guilty on both counts. Appellant filed motions for a new trial and in arrest of judgment, which were subsequently denied in an opinion and order of the lower court en banc dated February 17, 1982. On May 4, 1982, appellant was sentenced to a term of imprisonment of not less than two and one-half (2 1/2) nor more than eight (8) years. On May 14, 1982, after a hearing, appellant's motion for modification of sentence was dismissed.

On May 17, 1982, the Office of Public Defender of Cumberland County was appointed by the lower court to represent

[ 334 Pa. Super. Page 498]

    the appellant as a result of her allegations of ineffectiveness of trial counsel. A motion for reconsideration of appellant's sentence was granted by President Judge Shughart on June 1, 1982. A hearing was held on certain allegations of ineffectiveness on June 16, 1982. Thereafter, by order dated July 8, 1982 and amended July 15, 1982, President Judge Shughart reaffirmed the sentence as originally imposed and dismissed the ineffectiveness claims. This appeal timely followed.

The facts pertinent to this appeal may be summarized as follows. On July 30, 1981, at approximately 10:00 p.m., a black male approached the attendant at the Cam II Service Center on Route 11, Hampden Township, Cumberland County. He pointed a gun at the attendant and demanded money. After handing the robber $137.00 in bills, the attendant was told to lie down along the side of the service station. The robber then ran on foot to the adjoining parking lot and got into the passenger side of a station wagon. The vehicle then proceeded onto Route 11 in the direction of Harrisburg.

The attendant immediately phoned the police and supplied them with a description of a tall black male wearing a blue fishing hat and carrying a silver-barrelled pistol. He indicated that the suspect was riding in the passenger side of a Plymouth or Dodge station wagon, copper or tan in color, which was headed north on Route 11. This information was broadcast over the county police network and several patrol officers immediately proceeded to cover the various available escape routes.

Within minutes of County Control's radio bulletin, Patrolman Phelps of the Lemoyne Police Department observed the suspect vehicle travelling northbound on Interstate 83 (Route 11 merges into Interstate 83). Officer Phelps followed and eventually stopped the vehicle in Swatara Township, Dauphin County. Appellant, who was driving the car, produced a driver's license indicating a residence in Coatesville. When the officer questioned her as to her reason for being in the area, she appeared nervous and gave a vague

[ 334 Pa. Super. Page 499]

    answer about visiting friends. At that time appellant and her husband were placed in the patrol car and Officer Phelps returned to the Perry's car and looked for weapons. He reached under the seat and pulled out a blue fishing hat and a silver-barrelled revolver.

Several minutes later, Patrolman Rich of the Hampden Township Police arrived with the victim. The victim identified the vehicle, the hat, and the pistol, but was unable to positively identify Mr. Perry, although he did indicate to the officer that Mr. Perry looked like the perpetrator of the robbery. At that time, Officer Rich placed both Perrys under arrest. A pat-down search was conducted by a female police intern with the Swatara Township Police and ...


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