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COMMONWEALTH PENNSYLVANIA v. IRVIN LEATHERBURY (03/09/84)

filed: March 9, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
IRVIN LEATHERBURY, APPELLANT



No. 2823 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2707-2710-9-80.

COUNSEL

Howard S. Kaplan, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Montemuro, JJ.

Author: Wieand

[ 326 Pa. Super. Page 182]

Irvin Leatherbury was tried non-jury and convicted of robbery,*fn1 criminal attempt-theft,*fn2 simple assault*fn3 and criminal conspiracy.*fn4 Post-trial motions were denied, and a sentence of eighteen months to three years imprisonment was imposed for robbery. On direct appeal, Leatherbury contends that the evidence was insufficient to support the conviction, and that his speedy trial rights under Pa.R.Crim.P. 1100 were violated. In addition, he seeks a new trial based upon identification testimony of the victim which he alleges to be infirm because born of a suggestive pre-trial confrontation. Finding no merit in these contentions, we affirm.

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime [were] established beyond a reasonable doubt."

Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983), quoting Commonwealth v. Pitts, 486 Pa. 212, 215,

[ 326 Pa. Super. Page 183404]

A.2d 1305, 1306 (1979). See also: Commonwealth v. Biggs, 320 Pa. Super. 265, 267, 467 A.2d 31, 32 (1983); Commonwealth v. Todt, 318 Pa. Super. 55, 60-1, 464 A.2d 1226, 1228 (1983); Commonwealth v. Ruffin, 317 Pa. Super. 126, 133, 463 A.2d 1117, 1118-1119 (1983); Commonwealth v. Scarborough, 313 Pa. Super. 521, 525, 460 A.2d 310, 312 (1983).

In the early morning hours of July 15, 1980, seventy-one year old Francis Mahoney was walking along a street in Philadelphia when appellant and another man approached from behind, one on each side, and grabbed his arms. They said, "Give me your wallet and give me your money." Mahoney "shook them off" and moved away, claiming he didn't have any money. After a moment or two, the men turned and began to walk away. When Mahoney began cursing at them, however, they turned and again approached him. When a police car appeared, Mahoney flagged it and told Officer Fadgen what had transpired. The police officer called appellant and his companion to the car and arrested them.

Under the Crimes Code in Pennsylvania,

"(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree;

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury, or

(v) physically takes or removes property from the person of another by ...


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