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Scarborough v. Commonwealth

Court of Appeals of Virginia

December 31, 1996

PATRICK KIRK SCARBOROUGH
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS. Verbena M. Askew, Judge.

Oldric J. LaBell, Jr., for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General; Thomas D. Bagwell, Senior Assistant Attorney General, on brief), for appellee.

Present: Judges Baker, Benton and Overton.

MEMORANDUM OPINION [*]

JAMES W. BENTON, JR. JUDGE

Patrick Kirk Scarborough was convicted of robbery and sentenced to ten years in prison. On appeal, he contends that the trial judge erred in denying his motion to vacate the judgment until he could present evidence in support of a new trial. For the reasons that follow, we affirm the conviction.

I.

The evidence at trial proved that on November 5, 1994, at 2:30 p.m., Gloria Wilson was entering her car when a man grabbed her purse and attempted to pull it away. Wilson continued to hold the purse strap and was dragged by the man until the strap broke. Wilson yelled as the man escaped in a car with her purse.

Wilson described the man's facial features and clothing to Detective Richard Gaddis. Several days later, she selected from a photographic spread two persons, one of whom was Scarborough. At trial, when asked whether the man who robbed her was in the courtroom, Wilson stated, " I think that's him right there."

Susan Brown testified that she saw Scarborough in the parking lot and watched him because his clothing was inappropriate for the very warm temperature. After she and her husband passed him and parked their vehicle, she saw him pulling Wilson along the pavement by her purse. They were two parking spaces away. Brown's husband chased Scarborough until Scarborough escaped in an automobile.

After the robbery, Brown immediately selected Scarborough's photograph from an array of photographs. At trial, she positively identified Scarborough as the robber.

Scarborough testified and denied that he was the robber. He testified that on the afternoon of November 5, 1994, he went to visit Sola Kirby, his friend. When he found no one present at her apartment, he then went to visit another friend, Althea Ferguson, at 4:00 p.m. To support his alibi, Scarborough called five witnesses at trial, including Kirby and Ferguson. None, however, were able to testify that they saw him on November 5, 1994.

The trial judge convicted Scarborough of the robbery of Wilson. After considering a presentence report, the trial judge sentenced Scarborough on August 23, 1995.

On September 13, 1995, twenty-one days after sentencing and sixty days after trial, Scarborough's counsel orally moved the trial judge to vacate the judgment order of August 23, 1995, and to grant him an evidentiary hearing on his motion for a new trial. Counsel informed the judge that Scarborough called him on the afternoon of the day he was sentenced and said he had been mistaken about his alibi for the day of the robbery. Scarborough told him ...


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