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decided: January 23, 1989.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal at No. 8604-2449-2454.


Joseph T. Molieri, Jr., Philadelphia, for appellant.

Jeffrey Hellman, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Montemuro and Popovich, JJ.

Author: Per Curiam

[ 381 Pa. Super. Page 267]

Appellant, Thomas Brawner, appeals from judgment of sentence imposed July 1, 1987 by the Court of Common Pleas, Philadelphia County. He raises five issues on appeal, we address them in the order presented.

On January 26, 1986, at approximately 3:00 A.M., Joseph White, a cab driver, was robbed by his two passengers, who had requested transportation to 19th and Catherine Streets in Philadelphia. Upon arrival at their destination, one of

[ 381 Pa. Super. Page 268]

    the passengers placed what appeared to be a gun*fn1 against White's right cheek and instructed White to "give it up". In response, White handed the passengers his money. The passengers fled the scene after removing White's keys from the ignition and placing them on the sidewalk. White immediately called his dispatcher, told her he had been robbed, gave her his location, and described the appearance of the passengers. Appellant, Thomas Brawner, and Alvin Johnson, who were in the near vicinity of the crime and who matched White's description, were picked up by police who had responded to the call. During a pat down of the appellant, the police recovered a cap pistol from appellant's left coat pocket. The appellant and Johnson were transported to the scene of the crime, where White positively identified first the pistol and then appellant and Johnson. Appellant was subsequently charged with robbery,*fn2 simple assault,*fn3 recklessly endangering another person,*fn4 criminal conspiracy,*fn5 theft,*fn6 receiving stolen property,*fn7 and possession of an instrument of crime.*fn8 A preliminary hearing was scheduled for January 29, 1986. Because appellant was without counsel on January 29, 1986, counsel was appointed by the court and the preliminary hearing was rescheduled for February 21, 1986, which was the next available date. On February 21, 1986, the appellant was unable to appear because of hospitalization. The appellant was unable to appear at the next two rescheduled preliminary hearing dates, set for March 21, 1986 and April 4, 1986, for the same reason. The preliminary hearing was finally held on April 18, 1986, at which time the appellant was held over for trial. On May 8, 1986, a pretrial conference was held. At that time a continuance until August 4, 1986 was granted

[ 381 Pa. Super. Page 269]

    due to the unavailability of Johnson's counsel.*fn9 On August 4, 1986, appellant's counsel was granted a two day continuance. On August 6, 1986, the trial judge was not available for trial due to illness. The case was then relisted for August 11, 1986. On August 11, 1986, the Commonwealth requested a continuance because a necessary police witness was on vacation. The court granted the continuance until October 15, 1986, which was the next available date. On October 15, 1986, and on October 21, 1986 which was the next rescheduled date, the trial judge was not available for trial. As a result of these delays, the Commonwealth requested and was granted a continuance based on judicial delays until March 28, 1987. The appellant was finally brought to trial on January 12, 1987. The appellant's pretrial suppression motion and his motion to dismiss pursuant to Pa.R.Crim.P. 1100 were denied. The trial proceeded uneventfully until cross-examination of the appellant's witnesses. The prosecutor during the cross-examination of appellant's sister asked how many times the appellant had been arrested. Counsel objected and the objection was sustained. Counsel's motion for a mistrial was denied. The jury was then instructed to disregard the question. During the cross-examination of the appellant, the prosecutor asked him, in reference to the cap pistol, "so you don't use it in your robberies, is that the idea?" Counsel again objected and the court sustained the objection, however, not before the appellant answered the question in the negative. Appellant's counsel again objected to the prosecutor's actions when, during his closing argument, the prosecutor, referring to the appellant's testimony, declared "anybody is going to try to save their own skin even if it means being less than truthful" and "it (appellant's alibi defense) smells to high heaven. Rotten, it stinks and its obvious." Counsel's objections to these closing comments were overruled both times. The jury convicted the appellant of robbery, criminal conspiracy, and possession of an instrument of crime. After appellant's post-trial motions were heard and

[ 381 Pa. Super. Page 270]

    denied, appellant was sentenced to serve an aggregate term of 5 to 10 years imprisonment. This appeal followed.

Appellant first argues that the Commonwealth failed to exercise due diligence in bringing him to trial within the 180-day time limit of Pa.R.Crim.P. 1100(a)(2),*fn10 and therefore, the Commonwealth's petitions to extend the time for trial were erroneously granted. We disagree.

In order to be entitled to an extension under former Pa.R.Crim.P. 1100(c),*fn11 the Commonwealth must prove by a preponderance of the evidence that it acted with due diligence at the last listing before the amended rundate and any listing thereafter to bring the case to ...

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