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COMMONWEALTH PENNSYLVANIA v. ALBERT HERBERT (12/27/85)

filed: December 27, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT HERBERT, A/K/A ROBERT MILLER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 1941-1943 February Term 1982.

COUNSEL

Harvey L. Anderson, Philadelphia, for appellant.

Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.

Wickersham, Beck and Cercone, JJ.

Author: Wickersham

[ 348 Pa. Super. Page 567]

The underlying facts to this appeal are as follows:

Defendant was tried on the charges of robbery, theft by unlawful taking and simple assault on June 9, 1982, before the Honorable Nicholas M. D'Alessandro, sitting without a jury.

The trial evidence established the following. On July 7, 1981, at about 3:45 P.M., defendant grabbed the elderly, seventy-one year old victim, threw her into a doorway and then repeatedly knocked her to the ground while he tried to grab her purse. When defendant pulled at her purse, the victim struggled. To overcome her resistance, defendant knocked the elderly woman to the ground and kept pulling at her purse. He then picked her up and threw her back to the ground, this time successfully yanking her purse from her grasp. Police Officer John Russell and Joseph Walsh were on patrol when they observed defendant accost the victim as described above. They then chased defendant. During the chase, Officer Russell observed defendant throw the victim's purse under a car. Defendant was then caught, arrested and the purse retrieved by the pursuing officers.

After due deliberation, on June 11, 1982, Judge D'Alessandro found defendant guilty of all charges. Defendant, by trial counsel, Charles Junod, Esquire, timely filed and argued post-verdict motions. On August 8, 1982, the trial court denied defendant's post-verdict motions and imposed a sentence of four to eight years incarceration for

[ 348 Pa. Super. Page 568]

    robbery and ruled that the charges of theft and simple assault merged with robbery for the purposes of sentencing. On August 24, 1982, defendant timely filed his pro se appeal. Charles Junod, Esquire, appointed as appellate counsel on September 9, 1982, was removed on November 20, 1984. New counsel, Harvey L. Anderson, Esquire, was then appointed to represent defendant in his direct appeal.

Brief for Appellee at 1-2.

On appeal, appellant raises three issues:

I. Whether the Court erred in granting the Commonwealth an extension under Rule 1100, where the Commonwealth failed to sustain its burden of proof that it proceeded with due diligence to bring Appellant to trial within the time ...


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