Commonwealth v. Leatherbury

• Decision Date: 09 March 1984
• Citation: 473 A.2d 1040,326 Pa.Super. 179
• Parties: COMMONWEALTH of Pennsylvania v. Irvin LEATHERBURY, Appellant.
• Court: Pennsylvania Superior Court

473 A.2d 1040

326 Pa.Super. 179

COMMONWEALTH of Pennsylvania v. Irvin LEATHERBURY, Appellant.

Superior Court of Pennsylvania.

March 9, 1984

Submitted Oct. 21, 1983.

Howard S. Kaplan, Philadelphia, for appellant.

Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.

WIEAND Judge:

Irvin Leatherbury was tried nonjury and convicted of robbery ^[1] criminal attempt-theft, ^[2] simple assault ^[3] and criminal conspiracy. ^[4] Post-trial motions were denied, and a sentence of eighteen months to three years imprisonment was imposed for robbery. On direct appeal, Leatherbury contends that the evidence was insufficient to support the conviction and that his speedy trial rights under Pa.R.Crim.P. 1100 were violated. In addition, he seeks a new trial based upon identification testimony of the victim which he alleges to be infirm because born of a suggestive pre-trial confrontation. Finding no merit in these contentions, we affirm.

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth the trier of fact could reasonably have found that all of the elements of the crime [were] established beyond a reasonable doubt."

Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983), quoting Commonwealth v. Pitts, 486 Pa. 212, [326 Pa.Super. 183] 215, 404 A.2d 1305, 1306 (1979). See also: Commonwealth v. Biggs, 320 Pa.Super. 265, ---, 467 A.2d 31, 32 (1983); Commonwealth v. Todt, 318 Pa.Super. 55, ---, 464 A.2d 1226, 1228 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, ---, 463 A.2d 1117, 1118-1119 (1983); Commonwealth v. Scarborough, --- Pa.Super. ---, ---, 460 A.2d 310, 312 (1983).

In the early morning hours of July 15, 1980, seventy-one year old Francis Mahoney was walking along a street in Philadelphia when appellant and another man approached from behind, one on each side, and grabbed his arms. They said, "Give me your wallet and give me your money." Mahoney "shook them off" and moved away, claiming he didn't have any money. After a moment or two, the men turned and began to walk away. When Mahoney began cursing at them, however, they turned and again approached him. When a police car appeared, Mahoney flagged it and told Officer Fadgen what had transpired. The police officer called appellant and his companion to the car and arrested them.

Under the Crimes Code in Pennsylvania,

"(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree;

(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or

(v) physically takes or removes property from the person of another by force however slight.

(2) An act shall be deemed 'in the course of committing a theft' if it occurs in an attempt to commit theft or in flight after the attempt or commission."

18 Pa.C.S. § 3701(a)(1) (emphasis added).

"A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof."

18 Pa.C.S. § 3921(a).

"A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime."

18 Pa.C.S. § 901(a).

Here, there was sufficient evidence that appellant, in the course of an attempt to commit a theft, threatened the victim with or put him in fear of immediate bodily injury. When appellant and another young man came up behind this elderly man who was walking alone at 1:15 in the morning, grabbed him by both arms, and demanded his money and his wallet, the trier of the facts could infer that the young men intended to acquire the victim's money by placing him in fear of immediate bodily injury. Neither the fact that they did not inflict bodily injury nor that they were unsuccessful in obtaining the victim's money was controlling. An aggressive act intended to place the victim in fear that he was in danger of immediate physical harm was sufficient to elevate an attempted theft to robbery, 18 Pa.C.S. § 3701(a)(1)(iv). Whether the victim was in fact put in fear under such circumstances was not controlling. See: Commonwealth v. Hurd, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979); In re Gonzales, 266 Pa.Super. 468, 470, 405 A.2d 529, 530 (1979); Commonwealth v. Mays, 248 Pa.Super. 318, 321, 375 A.2d 116, 117-118 (1977).

A person is guilty of simple assault if he:

"(3) attempts by physical menace to put another in fear of imminent serious bodily injury." ^[5]

18 Pa.C.S. § 2701(a)(3). Although the victim in this case sustained no actual injuries, the circumstances under which he was accosted were sufficient to permit an inference that appellant intended by his conduct to put Mahoney in fear of imminent serious bodily injury. See: Commonwealth v. Stumpo, 306 Pa.Super. 447, 459, 452 A.2d 809, 815-816 (1982). Compare: Commonwealth v. Scott, 246 Pa.Super. 58, 369 A.2d 809 (1976).

Appellant was not deprived of a speedy trial as required by Pa.R.Crim.P. 1100. The criminal complaint was filed on July 15, 1980, thereby giving rise to a mechanical run date of January 12, 1981. ^[6] Appellant, although subpoenaed, failed to appear for a preliminary hearing on July 23, 1980. He was arrested on a bench warrant the following day. A bench warrant hearing was held on July 28, when the preliminary hearing was rescheduled for August 6, 1980. Appellant again failed to appear. A second bench warrant was issued, but it was withdrawn when it was discovered that appellant had failed to post bail and had remained in custody. A preliminary hearing was thereafter held on September 29, 1981 and, after the matter had been returned to court, an information was filed and appellant was arraigned. The first trial, scheduled for December 8, 1980, was continued because the Commonwealth lacked a witness and, therefore, was not ready to proceed. The second date set for trial was January 12, 1981, but on that date defense counsel was unavailable. Trial was postponed until March 9, 1981. The Commonwealth thereupon filed a petition requesting an extension of time within which to commence trial under Rule 1100. This petition was heard on February 17, when the court ruled that periods of five and fifty-six days were excludable because of the unavailability first of appellant and then his attorney. Pursuant to this ruling, the court added 61 days, and when the 61st day fell on a Saturday, the court computed the revised run date to be March 16.

Appellant contends that the exclusion of five days because of his failure to appear for preliminary hearing was improper because it was based solely on record entries and was not supported by other evidence. There is no merit in this contention. See: Commonwealth v. Harris, 315Pa.Super. 544, ---, 462 A.2d 725, 729 (1983). The record in this case showed, without dispute, that appellant had failed to appear on July 23, 1980 despite having had notice of his obligation to be present for preliminary hearing. Although the bench warrant was executed the following day and appellant thereafter remained in custody, the proceedings were not resumed until a bench warrant hearing was held on Monday, July 28. At that time a new preliminary hearing date was set for August 6 and new bail set at $1,500. At the very least, the five days intervening between appellant's failure to appear and the bench warrant hearing following his arrest were excludable. ^[7]

"[T]he period of excludable days is not necessarily measured by the length of time that a defendant was 'unavailable.' Instead, once it is determined that the defendant was unavailable, the critical inquiry is whether actual delay resulted from the defendant's unavailability. 'If the "unavailability" results in an actual delay in the proceedings, that delay is automatically excluded.' "

Commonwealth v. Colon, 317 Pa.Super. 412, ---, 464 A.2d 388, 395 (1983), quoting Commonwealth v. Millhouse, 470 Pa. 512, 517, 368 A.2d 1273, 1276 (1977). See also: Commonwealth v. Robinson, 498 Pa. 379, 386, 446 A.2d 895, 898-899 (1982); Commonwealth v. Derrick, 322 Pa.Super. 517, ---, 469 A.2d 1111, 1118 (1983); Commonwealth v. Perry, 296 Pa.Super. 359, 362, 442 A.2d 808, 810 (1982); Commonwealth v. Chapman, 271 Pa.Super. 473, 476, 414 A.2d 352, 353 (1979). Accord: Commonwealth v. Manley, 503 Pa. 482, 469 A.2d 1042 (1983).

The events which occurred following the first extension hearing on February 17 were described by Eliot Present, Esquire, an assistant district attorney, during testimony given at the second extension hearing on March 25. He said:

"... this case was originally listed on March 9th, 1981, at which time the complainant was present, and a Motion to Suppress the facts and evidence was litigated. At the conclusion of that Motion to Suppress, after argument from both myself and the Public Defender, Judge Katz held the case under advisement. We--at that time, we realized that I believe the run date of the particular matter was March 16th of 1981. That was on March 9th, 1981. The case was continued until March 17th, 1981 and the Rule at that time was waived 'til March 17th, 1981 voluntarily by the defendant and the Public Defender. ^[8]

Later that afternoon, the judge informed me that he would not be sitting on March 17th, so, in order for the case to be heard before the run date, it...