No. 63 Philadelphia 1982, APPEAL FROM THE JUDGMENT OF SENTENCE OF NOVEMBER 30, 1981 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CRIMINAL NO. 3981-80
Joseph W. Bullen, III, Assistant Public Defender, Media, for appellant.
Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
Brosky, Cirillo and Lipez, JJ.
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This is an appeal from the Judgment of Sentence dated November 30, 1981, in the Court of Common Pleas of Delaware County. On October 30, 1980, the appellant, Kenneth Harris, was convicted in a jury proceeding,*fn1 of robbery*fn2 and conspiracy.*fn3 Post-trial motions were denied by order, dated November 20, 1981. Appellant was sentenced to a term of imprisonment of five to ten years on
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each conviction, which terms were to be served consecutively to any term then being served by him.*fn4 Appellant filed a motion for reconsideration of sentence on December 10, 1981, contending that the sentence was unduly harsh, which motion was denied without a hearing, on December 14, 1981. This appeal followed.
On June 2, 1980, the appellant and co-defendant, Oliver Slacum, entered the Parkside Auto Parts Store in Parkside, Delaware County, Pennsylvania. Paul Nester, an employee, was the only other individual present in the store at that time. Harris requested a piece of equipment. While Nester was locating it in the catalogue on the counter, co-defendant Slacum went behind the counter and held a gun to Nester's head. Then Slacum ordered Nester to lie down on the floor. After both unsuccessfully attempted to open the cash register, Slacum ordered Nester to get up and do it. Slacum then took approximately $25.00. He then demanded to know where the rest of the money was. Nester showed him the petty cash box which contained approximately $180.00. Slacum then tied Nester up. While Nester was being tied up, Slacum took from him a watch and gold chain.
Richard Umbrecht then entered the store. He observed that there was no one behind the counter, but a black man was standing by another entrance to the store. This man then asked Umbrecht about automobile paint. At that time, a person emerged from the back of the store, and asked Umbrecht if he could help him. When Umbrecht requested a certain part, he was told that he could not be helped at that time, but to come back in an hour. Subsequently, when Nester heard Slacum and Harris leave the store, he untied himself and called the police.
Nester gave the police a verbal description of both men. From this information, a composite sketch was prepared of Slacum. However, Nester was unable to identify either of
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these individuals from five books containing approximately 700 photographs.
Nester's full time job was a position at Delaware County Prison as an auto-shop instructor. On July 17, 1980, he observed Harris inside the prison. He immediately recognized Harris, and mentioned this to another employee at the prison. However, he did not report this information to the police at that time. Then on July 23, 1980, he saw Slacum at the prison. The next day Nester contacted the police and informed them that he had seen the two men who had robbed him. ...