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filed: November 17, 1989.


Appeal from the Judgment of Sentence Docketed December 4, 1988, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 85-02-0358 and 360.

Tamilia, Popovich and Hester, JJ.


This is a direct appeal from the judgment of sentence of five to fifteen years imprisonment for robbery with a consecutive two to five year term for a weapons offense imposed following appellant's conviction of the above offenses by a jury. Appellant alleges the trial court erred in granting the Commonwealth's Rule 1100 extension petition as well as in finding that there was sufficient evidence to sustain the weapons offense conviction. As appellant's arguments lack merit, we affirm the judgment of sentence.

The following detailed information is relevant to this appeal. A criminal complaint was filed against appellant on January 3, 1985, but he was not arrested until January 29, 1985, when he also was arraigned preliminarily. On February 4, 1985, appellant was bound over for court, and formally arraigned on February 19, 1985. Due to appellant's incarceration on other charges, he failed to appear for a pretrial conference on March 4, 1985, and a bench warrant was issued. The trial court lifted the bench warrant on March 8, 1985, upon learning of appellant's incarceration. On May 31, 1985, after the trial court determined that a public defender would not be available to represent appellant until July 15, 1985, it listed appellant's jury trial for August 28, 1985. On July 3, 1985, the Commonwealth filed its petition for an extension of time under Rule 1100, and it was granted.

On August 28, 1985, defense counsel requested more time to conduct further investigation. Following an oral amendment of Pa.R.Crim.P. 1100, the trial court continued the case until April 8, 1986. On April 8, 1986, the case was continued again until December 16, 1986. However, on May 22, 1986, appellant's trial was listed for August 4, 1986. On August 4, 1986, the case was continued until August 8, 1986. On August 6, 1986, the defense requested a line-up and a jury trial. The line-up was scheduled for August 21, 1986, and the matter was continued until November 17, 1986. On November 17, 1986, the defense requested another line-up, which was scheduled for December 4, 1986, and the case was continued once again until February 17, 1987. On February 17, 1987, the defense request for a line-up was granted and scheduled for February 25, 1987. The matter was listed for February 26, 1987. On February 27, 1987, the case was continued until September 1, 1987. Following several further continuances, appellant proceeded to trial on October 16, 1987, before a jury.

On October 19, 1987, the jury found appellant guilty of robbery and carrying a firearm on public streets or property. Post-trial motions were filed on October 27, 1987, with supplemental motions filed on April 29, 1988. Following a hearing, appellant's post-trial motions were denied on July 8, 1988. Appellant was sentenced to a term of imprisonment of five to fifteen years for the robbery with a consecutive sentence of two to five years for the weapons offense. This timely appeal followed.

The facts of this case may be summarized as follows. On March 8, 1984, appellant entered the "654 Bar" at approximately 11:50 p.m., and ordered a six-pack of beer. He retired to the men's room before paying the bartender, Marilyn Williams, for the beer. Upon exiting the men's room, appellant paid the bartender for the beer. Suddenly, while paying for his purchase, appellant announced a "stick up" and brandished a gun. As Williams was giving appellant the money, he became impatient and emptied the cash register himself. During this time, a patron of the bar, Darlene Roland, observed appellant and beat him with her umbrella when he yelled "stick up." However, once Roland saw appellant's gun she stopped hitting him. Both Roland and Williams identified appellant as the robber that night in the bar.

Appellant raises the following allegations of trial court error: the trial court erred in: 1) granting the Commonwealth's untimely Pa.R.Crim.P. 1100 petition; 2) granting the Commonwealth's Pa.R.Crim.P. 1100 petition even though the Commonwealth failed to establish due diligence in conducting a line-up; and 3) finding sufficient evidence to support the weapons offense and its mandatory sentencing provision.

Initially, appellant argues that the Rule 1100 mechanical run date for him to be brought to trial was July 2, 1985. As the Commonwealth filed its petition for an extension of time under the rule on July 3, 1985, appellant argues that it was untimely.*fn1 The Commonwealth argues that since defense counsel was unavailable from May 31, 1985, until July 15, 1985, within the initial 180 day period, this time is excludable; therefore, the Commonwealth's petition is timely. The trial court found:

[W]hile the defense questions it, there is evidence that the rule run date might have been further elongated; for at the May 31st listing of the case, defense counsel advised the Court that he was unavailable for trial until after July 15, 1985 which was after the mechanical run date; thereby making all the time from then to July 15th also excludable time. See Pa.R.Crim.P. 1100 (d)(3)(i).

Trial court opinion, 5/4/89, at 4.

It is well-settled that any period of delay due to the unavailability of the defendant or his attorney during any stage of the proceedings is properly excludable. See Commonwealth v. Neal, 348 Pa. Super. 155, 501 A.2d 1116 (1985); Commonwealth v. Gorham, 341 Pa. Super. 499, 491 A.2d 1368 (1985). Upon our careful review of the record, we believe the trial court properly excluded the time period for which appellant's counsel was not available; therefore, the Commonwealth's July 3, 1985 petition for an extension of time under Rule 1100 was filed timely.

Appellant also asserts that the trial court erred in granting the Commonwealth's extension petition due to the fact that the Commonwealth failed to establish due diligence in consummating a court-ordered line-up. Specifically, appellant alleges the Commonwealth failed to effectuate the line-up since appellant was in state custody or the witnesses subject to the line-up order failed to appear. The Commonwealth argues that the continuances were requested by the defense and that the time involved was automatically excludable from the time of trial requirements. We agree. In Commonwealth v. Potts, 368 Pa. Super. 408, 412, 534 A.2d 501, 503 (1987), we held that a delay caused by a defense request for a line-up "was a delay caused wholly by the defense and was excludable pursuant to Pa.R.Crim.P. 1100 (d)(3)(ii)." See Commonwealth v. Taylor, 340 Pa. Super. 87, 489 A.2d 853 (1985) (a delay in bringing a defendant to trial needs only to be attributable to the defense in order to excuse the Commonwealth from its duty to exercise due diligence in bringing a defendant to trial). Consequently, appellant's allegation is meritless.

Finally, appellant argues that absent proof that appellant possessed an operable firearm, the evidence was insufficient to sustain his conviction for violating the Pennsylvania Uniform Firearms Act, and triggering the mandatory sentencing provision for offenses committed with a firearm. The standard for reviewing sufficiency of the evidence claims is well-established.

[W]hether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. . . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. . . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. . . .

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Hunter, Pa. Super. , 554 A.2d 550 (1989). The statutes to which appellant is referring state:

18 Pa.C.S. § 6108 Carrying firearms on public streets or public property in Philadelphia.

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

42 Pa.C.S. § 9712 Sentences for offenses committed with firearms.

(a) Mandatory sentence. - Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701 (a)(1)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

(b) Proof at sentencing. - Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

(c) Authority of court in sentencing. - There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentence provided in this section.

(d) Appeal by Commonwealth. - If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

(e) Definition of firearm. - As used in this section "firearm" means any weapon (including a starter gun) which will or is designated to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

In Commonwealth v. Bond, 362 Pa. Super. 48, 52, 523 A.2d 768, 770 (1987), we determined that in order "to find that a weapon is operable and hence a 'firearm' under § 9712(e), the factfinder need not be presented with direct proof of operability - i. e., introduction of the weapon itself, evidence that it was fired, or evidence that a witness observed its operating mechanism - but can infer operability from circumstantial evidence." Upon our thorough review of the record, we believe that the Commonwealth presented sufficient evidence through eyewitness testimony to establish that the weapon appellant possessed either "looked like," "felt like," "sounded like," or "was like" a firearm. Commonwealth v. Bond, supra, 362 Pa. Super. at 53, 54, 523 A.2d at 771, citing Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973). Accordingly, we hold that the trial court properly found appellant to have possessed an "operable" weapon or firearm; therefore, he was subject to the mandatory sentencing provisions contained in 42 Pa.C.S. § 9712. As appellant's allegations are meritless, we affirm his judgment of sentence.

Judgment of sentence affirmed.


Judgment of sentence affirmed.

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