Appeal, No. 285, Oct. T., 1957, from sentence of Court of Quarter Sessions of the Peace of Philadelphia County, Aug. T., 1956, No. 251, in case of Commonwealth v. Lawrence Douglass. Judgment affirmed.
Cecil B. Moore, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 185 Pa. Super. Page 270]
On July 21, 1956, about 9:50 p.m., Elizabeth Briscoe, the proprietress of a barbecue business, was robbed by six boys who entered the place of business. They were not masked and remained in the establishment about 15 minutes. The boy who announced the holdup stuck Mrs. Briscoe in the back with a knife and said:
[ 185 Pa. Super. Page 271]
"lady, this is a holdup." They then placed her in a corner of the room, and robbed her of $23.00 or $24.00. She described the defendant as follows: "... he had on a blue and white plain shirt, stripes, plain like, and a brown pair of army pants, and his hair fixed exactly as it is now." She testified that she had known the defendant and had seen him pass her place of business prior to this incident, during the summer season, and that she knew his features by reason of thus having seen him. She reported the robbery to the police. Detective McGovern, who was assigned to investigate the case, testified that Mrs. Briscoe described the defendant as being 25 to 28 years old, 5' 7" tall, weighing 135 pounds, having black hair and wearing a plaid shirt. On July 28, 1956 Mrs. Briscoe pointed out appellant to Detective McGovern at 12th and Thompson Streets as being the boy who held the knife during the holdup. Detective McGovern apprehended the appellant and brought him to Mrs. Briscoe, who again made the accusation. At the trial on March 22, 1957 Mrs. Briscoe positively identified the defendant as being the person who stuck her in the back with a knife and announced the holdup. She did not deviate in her testimony at the trial but on cross-examination admitted that she had appeared before the magistrate on July 29, 1956 and testified that the defendant was not the robber. On re-direct examination Mrs. Briscoe explained why she testified as she did at the magistrate's hearing by saying that after defendant had been arrested, she came out of her place of business to find some boys standing there. She overheard one of them say: "Yes, there she goes now. If she prosecutes him tomorrow morning, we are going to really do her in. She thinks she has been done in." Mrs. Briscoe further testified that her husband was in the Army and that she was there alone and was afraid. Appellant
[ 185 Pa. Super. Page 272]
testified in his own behalf that on the night in question he was not present in the victim's store but was visiting a girl friend. No other testimony was presented to corroborate the alibi. The defendant waived a jury trial and was tried by a judge without a jury on the charge of aggravated robbery. The judge found the defendant guilty and, after dismissing motions for new trial and in arrest of judgment, imposed sentence. The defendant appealed.
The appellant first argues that the identification evidence was not sufficient to sustain a conviction. He relies upon the case of Com. v. Sharpe, 138 Pa. Superior Ct. 156, 10 A.2d 120, to support his position. In that case, which involved a robbery by two masked men, we held that the evidence was not sufficient to sustain the conviction. Four employes observed the defendant but they could not positively identify the defendant as one of the two robbers. They were unwilling to say under oath that the defendant was one of the two men. There was no other testimony to connect the defendant with the robbery. In that case we said: "The trial judge gave no instructions to the jury as to their proper approach to this testimony. This in itself is ground for a new trial; in addition, there is the more important fact that all of the testimony taken together at its full weight will not support a conviction." For this latter reason judgment was reversed and the defendant discharged. In the present case the victim positively identified the appellant as the robber. It was perfectly proper to permit the victim to explain why she had ...