Appeal, No. 19, April T., 1961, from judgment of Court of Oyer and Terminer of Allegheny County, Nov. T., 1956, No. 54, in case of Commonwealth of Pennsylvania v. Jesse Jamison. Judgment affirmed.
Barney Phillips, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 195 Pa. Super. Page 305]
OPINION BY MONTGOMERY, J.
This appeal is from the judgment of sentence resulting from appellant's conviction in a trial before Honorable FREDERIC G. WEIR, Judge, without a jury, on an indictment charging armed robbery.
The only question before us is the sufficiency of the evidence offered to identify appellant as the person who had committed the offense. Appellant-defendant denied the charge and testified that he had been living in Detroit, Michigan, at the time the offense was committed. He offered other evidence to establish his alibi. In addition he called on Arnold Brown who had been convicted and had completed his sentence for being the "lookout" in connection with the same robbery. Brown said appellant was not the other party to the crime.
The Commonwealth, on the other hand, offered positive testimony to identify appellant. Spitzer, the victim who had been directly confronted by his assailant, as well as three other persons, Coleman, Giles and Jennings, each of whom was in a position to clearly see him, all identified appellant without question or qualification. Although appellant was not apprehended until shortly before his trial, which was long after the crime had been committed, Coleman and Giles had identified him from pictures, shortly after the date of the offense.
Appellant's argument is based on the statement of law that "no class of testimony is more uncertain and less to be relied upon than that as to identity and, where grave doubt is cast on it by witnesses themselves it should be submitted to the jury with great caution,
[ 195 Pa. Super. Page 306]
etc." However this statement has been disapproved as being too broad. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820.
The correct statement set forth in that case is (p. 424): "Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and ...