Appeal from the Judgment of Sentence entered July 18, 1986 in the Court of Common Pleas of Erie County, Criminal Division, No. 1338 of 1985.
Michelle M. Hawk, Erie, for appellant.
Douglas J. Wright, Assistant District Attorney, Girard, for Com., appellee.
Cavanaugh, Rowley and Kelly, JJ. Cavanaugh, J., files a dissenting opinion.
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In this case, we called upon to determine whether robbery or theft occurs when an unconscious, intoxicated victim is rolled over onto his side and his wallet is stolen out of his pants pocket. We conclude that this criminal act constitutes
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theft rather than robbery. Accordingly, we vacate appellant's robbery conviction and remand for resentencing.
The facts and procedural history may be summarized as follows. On September 2, 1985, the appellant, Ronald Williams, and the victim were drinking wine with Frank Morrow and an unidentified male on the corner of Ninth and Parade Streets in Erie, Pennsylvania. The victim passed out on his back. Eyewitnesses observed appellant roll the victim onto his side and remove his wallet from his pants pocket. The police were called. When the police arrived, one of the eyewitnesses motioned them to the direction of the appellant, Frank Morrow and the other man who were walking very fast to an apartment building which they attempted to enter. The police, however, surrounded the three men and arrested them.
The appellant and Frank Morrow were charged with criminal conspiracy and robbery. On January 22, 1986, the Commonwealth filed a petition for an extension of time for commencement of trial pursuant to Pa.R.Crim.P. 1100 to which appellant objected. Following a hearing, the time for trial was extended to March 21, 1986. Appellant was tried by a jury on March 17, 1986. Co-defendant, Frank Morrow, was not tried at that time; his whereabouts were unknown and a bench warrant had been issued for his arrest. At the trial, three eyewitnesses testified that they saw the appellant roll the victim over and remove his wallet. The appellant was found guilty of criminal conspiracy and robbery.
Post-verdict motions were filed and denied. On July 18, 1986, appellant was sentenced to an aggregate term of three to seven years imprisonment. Although no timely notice of appeal was filed, appellant later filed a motion for leave to appeal nunc pro tunc which was properly granted by the trial court on September 9, 1986. This appeal followed.
Appellant raises two issues on appeal. First, appellant contends the trial court erred in granting the Commonwealth's motion to extend time for commencement of trial under ...