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COMMONWEALTH PENNSYLVANIA v. DERRICK DAYS (01/10/86)

filed: January 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DERRICK DAYS, APPELLEE



Appeal from the Judgment of Sentence of the court of Common Pleas of Philadelphia County, Criminal, at No. 87, 90 May Term, 1984.

COUNSEL

Rona S. Totoki, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Barbara L. Charles, Philadelphia, for appellee.

McEwen, Montemuro and Tamilia, JJ.

Author: Montemuro

[ 349 Pa. Super. Page 189]

In August, 1984, appellee Derrick Days was convicted in a non-jury trial of kidnapping, unlawful restraint, robbery, theft by taking and possessing instruments of crime.*fn1 Appellee's timely filed post-verdict motions for a new trial and in arrest of judgment were denied.

[ 349 Pa. Super. Page 190]

At the sentencing hearing, the Commonwealth requested that appellee receive a sentence of incarceration and stated to the trial court that eighteen (18) months was the bottom of the mitigated guideline range and that there was nothing to mitigate the offense.

The trial court, while agreeing that the offense was not mitigated, sentenced appellee as follows:

On the Criminal Information charging Robbery -- "Time-in" (approximately eight (8) months) to twenty-three (23) months imprisonment;

On the Criminal Information charging Kidnapping -- One (1) year probation to run concurrent with the sentence on the robbery conviction*fn2 and further appellee was forbidden from employment which involved working with children;*fn3

On the Criminal Information charging Possessing Instruments of Crime Generally -- One (1) year probation to run concurrent with the sentence on the robbery conviction; and

On the Criminal Information charging Theft by Unlawful Taking or Disposition -- One (1) year probation to run concurrent with the sentence on the robbery conviction.

[ 349 Pa. Super. Page 191]

The Commonwealth filed a petition for reconsideration of sentence, which was denied without a hearing. This appeal followed.

The Commonwealth claims that the trial court "failed to sufficiently consider the totality of the circumstances in sentencing defendant to the unreasonably lenient sentence imposed, and therefore impermissibly and unreasonably deviated from the guidelines promulgated by the Pennsylvania Commission on Sentencing." (Commonwealth's Brief at 3). Since we agree, the judgment of sentence is vacated and the case remanded for resentencing consistent with this opinion.

The facts which led to appellee's arrest and conviction were accurately summarized by the trial court as follows:

On April 17, 1984, Donald Martin, the complainant, was selling newspapers at the corner of 34th Street and Grays Ferry Avenue in Philadelphia. Around 1 p.m., Days, who was driving a yellow cab, stopped at 34th and Grays Ferry and signaled that he wanted to buy a newspaper. Martin approached the cab on the passenger side to hand Days the paper. As Martin reached into the cab to collect his fee, Days grabbed Martin's arm and told him to get into the cab. With his other hand, Days pointed a gun at Martin. Martin, who was carrying his stack of newspapers, obeyed. Days drove Martin around the city for two to three hours, holding the gun on him the entire time.

Days told Martin to give him the newsboy's apron, which Martin was wearing. Martin placed the apron on the floor of the cab. It contained the day's receipts, about $80. Martin kept asking Days where he was being taken. Days repeatedly told him to shut-up or be quiet.

When Days stopped for a red light about two blocks from Broad and Erie Streets, Martin threw the newspapers at him and jumped out of the cab. Martin ran around the corner and crouched behind a car, until he saw Days drive past. When he believed himself to be out of danger, Martin came out of hiding and walked home to West Philadelphia. When he arrived home an hour later,

[ 349 Pa. Super. Page 192]

Martin told his parents what had happened. Martin was crying and had an upset stomach.

The next afternoon, Martin, accompanied by his father and two police officers, went to the cab company to observe the drivers. They waited from 5 p.m. to 9 p.m. but Martin did not see the person who robbed him. The police gave him a ...


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