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COMMONWEALTH PENNSYLVANIA v. GERALD KENON (06/08/84)

submitted: June 8, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD KENON, APPELLANT



No. 00920 PHILADELPHIA, 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, NO. 1573, 1575 and 1576 of December Term, 1981.

COUNSEL

William J. Perrone, Norristown, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Tamilia, Johnson and Hester, JJ.

Author: Hester

[ 333 Pa. Super. Page 368]

In late morning of October 27, 1981, Carey Kressler was driving a delivery truck for his employer, Stroehman Bakery. He double-parked on the twenty-one hundred block of Dauphin Street in the City of Philadelphia in order to make a delivery.

As Kressler walked to the inside rear of the truck to remove stock, appellant, Gerald Kenon, entered the truck from the driver's side. Armed with a thirty-eight caliber

[ 333 Pa. Super. Page 369]

    automatic pistol, appellant stopped within three feet of Kressler and said, "Give me your money or I'll kill you." Following Kressler's surrender of approximately $80.00 in cash, appellant fled.

Attracted by Kressler's unlawfully parked vehicle, Officers Brown and Armstead of Philadelphia's Anticrime Unit had driven their police vehicle alongside Kressler's truck as appellant alighted from the driver's side and ran from the scene. Both officers pursued appellant in their vehicle for a short distance until he eluded them by running through an empty lot. The officers returned to Kressler's truck. Shortly thereafter, Officer Armstead departed to secure the area while Brown remained at the truck with Kressler.

As Brown and Kressler were standing alongside the truck, appellant walked by. Brown radioed Armstead and waited for his arrival as it was the Unit's policy to discourage arrests by one officer. The officers apprehended appellant within a short time at 22nd and Diamond Streets.

As a result of this incident, appellant was charged with robbery, receiving stolen property, recklessly endangering another person, firearms not to be carried without a license, theft, terroristic threats, possessing instruments of crime and carrying firearms on public streets or public property in Philadelphia.

Following a jury trial, appellant was found guilty of possessing instruments of crime, carrying firearms on public streets and robbery. Post trial motions in arrest of judgment and for a new trial were denied. Appellant was sentenced to a term of imprisonment of five to ten years on the robbery bill, and to a consecutive term of two to four years on possessing an instrument of crime. Sentence was suspended on the conviction for carrying firearms on public streets. This appeal was taken from the judgment of sentence.

Appellant's first argument is that counsel was ineffective for not demanding that a court-ordered line-up be held prior to an in-court identification, and for not filing a pre-trial

[ 333 Pa. Super. Page 370]

    motion to suppress the victim's in-court identification. A line-up, ordered by the Philadelphia Police Department, was scheduled for November 25, 1981, twenty-one days prior to the preliminary hearing. The line-up was cancelled due to the fact that the prison in which appellant was held was under a lock up until a missing prisoner was found. The line-up was not re-scheduled; therefore, appellant was identified in court for the first time. Appellant complains that the absence of a ...


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