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COMMONWEALTH PENNSYLVANIA v. WILLIAM D. NELSON (09/18/89)

submitted: September 18, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM D. NELSON, APPELLANT



Appeal from the Judgment of Sentence Docketed March 19, 1987 in the Court of Common Pleas of Philadelphia County Criminal Division, No. 86-03-3531 to 3536.

COUNSEL

Maryann F. Swift, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Rowley, Kelly and Cercone, JJ.

Author: Cercone

[ 389 Pa. Super. Page 421]

Appellant, William D. Nelson, was charged with recklessly endangering another person,*fn1 theft by unlawful taking or disposition,*fn2 theft by receiving stolen property,*fn3 simple assault,*fn4 robbery,*fn5 possessing an instrument of crime generally*fn6 and possessing an instrument of crime in the form of a concealed instrument.*fn7 After a jury trial, appellant was convicted of all counts. Motions for new trial and in arrest of judgment were filed timely, argued and denied. Appellant was sentenced to five (5) to ten (10) years incarceration on the robbery count and a concurrent term of one (1) to five (5) years incarceration for the two offenses related to possessing an instrument of crime. For the purposes of sentencing, the other crimes merged with the robbery offense.

Trial counsel timely filed a notice of appeal, but we dismissed this appeal when he failed to file a brief on appellant's behalf. After appellant filed a petition under the Post-Conviction Relief Act, (hereinafter referred to as "PCRA"), the PCRA court reinstated his appellate rights. New counsel filed a notice of appeal and instant counsel was appointed to represent appellant. We affirm the judgment of sentence.

As determined by the lower court, the facts underlying this case are as follows. On November 10, 1985, at approximately 6:30 p.m., the appellant, armed with a gun entered the Mobil gas station at Roosevelt Boulevard and Rhawn Street in Philadelphia County and proceeded to rob the gas station attendant at gunpoint. The armed man forced the gas station attendant to open up the cash register and empty its contents, along with rolls of change not in the

[ 389 Pa. Super. Page 422]

    cash register, into a plastic bag.*fn8 The amount of money taken was in excess of $200.

Appellant raises six issues for our review: (1) whether the lower court erred in not granting a continuance to allow an alibi witness to testify when she was out of the jurisdiction but was expected to return within a week of the trial date; (2) whether trial counsel was ineffective for failing to file a notice of alibi witness and for failing to argue the first issue in post-trial motions; (3) whether the trial court erred in allowing the Commonwealth to introduce evidence of a prior robbery under the identification exception to the general rule that evidence of prior criminal conduct is not admissible to prove guilt; (4) whether the lower court erred in not using a jury instruction requested by appellant; (5) whether the trial counsel was ineffective for failing to argue the fourth issue in post-trial motions; and (6) whether the prosecutor committed prosecutorial misconduct when in closing he referred to a prior proceeding at which the fairness of the identification was determined. We will address each issue seriatim.

Appellant's initial claim is that the lower court erred in not granting a continuance to allow an alibi witness to testify. Appellant alleges in his brief that the witness was out of the jurisdiction but expected to return within a week of the trial date. Initially, we note that there is nothing in the record to indicate that appellant requested a continuance. We must decide a case on the basis of the facts of record and not on allegations of fact contained in a party's appeal brief. Commonwealth v. Marchesano, 348 Pa. Super. 387, 502 A.2d 597 (1985), order vacated on other grounds, Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333 ...


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