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COMMONWEALTH PENNSYLVANIA v. ALBERT NEWMAN (02/27/89)

filed: February 27, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT NEWMAN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at May Term of 1987, No. 1464.

COUNSEL

Joseph S. O'Keefe, Norristown, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.

Popovich, Melinson and Hester, JJ.

Author: Melinson

[ 382 Pa. Super. Page 226]

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County in which Appellant, Albert Newman, was sentenced to imprisonment for convictions of aggravated assault,*fn1 possession of an instrument of crime,*fn2 and simple assault.*fn3 We affirm.

On 1 August 1986, Minnie Mae Major was parking her automobile near her home in Philadelphia, Pennsylvania. She noticed Newman lurking behind a tree in a vacant lot across the street. She knew Newman because he had lived with her recently deceased daughter, Sarah Rhodes. As Mrs. Major was about to exit from the automobile, Newman appeared at the side window, pointed a gun at her, and ordered her to get out of the vehicle. Instead of exiting from the automobile, she restarted her vehicle and sped off while Newman fired several shots at the vehicle. Newman also fired shots at Elijah Major, Mrs. Major's husband, when he appeared in the doorway of his home after hearing the gunshots. Later that evening, Newman telephoned Mrs. Major informing her that: he blamed her for the death of her daughter; he wanted to kill Mrs. Major; and, he would succeed in killing her next time.

After the shooting incident, police detectives arrived at the Major's home and showed Mrs. Major a photographic array from which she identified Newman as the gunman. Three days after the incident, Newman fled to New York. He was arrested eight months later in New York and returned to Philadelphia.

The Honorable Francis A. Biunno presided over a jury trial at which Newman was convicted of aggravated assault on Mrs. Major, simple assault on Mr. Major, and possession of an instrument of crime. Post-trial motions were filed and denied. Judge Biunno sentenced Newman to serve five (5) to ten (10) years of imprisonment for aggravated assault, one (1) to two (2) years of imprisonment, consecutive

[ 382 Pa. Super. Page 227]

    to the aggravated assault, for simple assault, and five (5) years of probation consecutive to the first two convictions for possession of an instrument of crime. This direct appeal follows.

On appeal, Newman asserts thirteen (13) issues for our consideration. We quote from his brief as follows:

1. Did the Learned Trial Court err in denying the defendant's motion to dismiss Rule 1100 and in granting the Commonwealth's Petition to Extend Rule 1100?

2. Did the Learned Trial Court err in refusing to allow the defendant's psychiatrist to testify?

3. Did the Learned Trial Court err in refusing to allow an expert witness, Professor Abrams of the University of Pennsylvania, from testifying? [sic]

4. Did the Learned Trial Court err in refusing to sever the charges of theft of a gun occurring on July 27, 1986 from the numerous assault charges averred of August 1, 1986?

5. Did the Learned Trial Court err in failing to charge the jury that the Commonwealth muyst [sic] prove beyond a reasonable doubt, that what occurred was under circumstances maifesting [sic] an extreme indifference to the value of human life?

6. Did the Learned Trial Court err in fialing [sic] to charge the jury as to the limitations of the significance of the addresses to which the detective refferred [sic]?

7. Did the Learned Trial Court err in denying the defense the right to ask prospective venireman [sic] whether or not they believed a reasonable man could believe in the religion of Voodoo?

8. Did the Learned Trial Court err in overruling the objections of the defense to the hearsay statements presented during the course of the trial?

9. Did the Learned Trial Court err in overruling the defense objections to the testimony by Dective [sic] Hughes that the defendant was arrested in another jurisdiction?

[ 382 Pa. Super. Page 22810]

. Did the Learned Trial Court err in refusing to appoint to the defendant new counsel prior to the commencement of trial?

11. Was Trial Counsel ineffective in failing to argue during Rule 1100 hearing that the oral amendment were annulity [sic] and that there was no prompt hearing and that the District Attorney's Petition contained only general averments?

12. Was Trial Counsel ineffective in failing to argue during the Motion to sever, that the Commonwealth had never filed a Motion to consolidate?

13. Was Trial Counsel ineffective in basing her defense upon witnesses whose testimony was inadmissible, or at least in not requesting ruling on the proper evidence prior to the start of the defense's case?

Brief for Appellant at pages 6 and 7.*fn4

Initially, Newman asserts that the trial court erred in not dismissing the case due to the Commonwealth's alleged violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. Rule 1100 provides in pertinent part:

Rule 1100. Prompt Trial

(d) In determining the period for commencement of trial, there shall be excluded therefrom:

(1) the period of time between the filing of the written complaint and the defendant's arrest; provided that the defendant could not be ...


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