Appeal from judgment of Court of Oyer and Terminer, Quarter Sessions and General Jail Delivery of Allegheny County, June T., 1963, No. 41, in case of Commonwealth of Pennsylvania v. Charles Wilkerson.
Edward E. Rieck, for appellant.
Louis Abromson, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J. Concurring Opinion by Wright, J.
[ 204 Pa. Super. Page 215]
Appellant-defendant was tried on two indictments charging him with armed robberies of the Pennsylvania Savings and Loan Association. Each indictment charged a separate offense, one occurring on February 9, 1962, and the other on April 26, 1963. The jury found him guilty of the earlier offense but acquitted him of the latter.
In this appeal he complains of prejudice in the refusal of his motion for a separate trial on each indictment, of error in the admission of a written statement given by Robert Lee Allen, a Commonwealth witness, and of errors in the charge of the court (Alpern, J.). He contends also that the evidence does not support his conviction. We shall confine our discussion to the complaint of errors in the charge of the court since we conclude that a new trial is necessary on that basis.
In regard to the February 9, 1962 offense, the Commonwealth relied on the testimony of Miss Elizabeth Pinter, an employe of the Pennsylvania Savings and Loan Association, for positive identification of the defendant. She first identified the defendant at a line-up on May 14, 1963. However, at a line-up held on March 31, 1962, she did not fully identify the defendant but filled out a line-up slip, Commonwealth Exhibit No. 11, on which she indicated that the defendant was the one in the line-up closest in resemblance to the robber. On direct examination Miss Pinter testified: "Q. Miss Pinter, do you have any explanation as to why you were sure on May 14, 1963, and you were not sure on March of 1962? A. Well, the line-up -- I don't know, I just must have had him in the back of my mind, and it came to me; the year before that, I had seen so many, I just couldn't be sure, and I didn't want to say." On cross-examination she testified that the robbery took place
[ 204 Pa. Super. Page 216]
in three to five minutes; and she testified as follows: "Q. Then, Miss Pinter, isn't it true that your observation of the robber was somewhat limited in that you were only able to take quick glimpses of the robber, that you were only able to observe the front of his face and only that part of his face from his eyes down? A. Well, I guess so, being that he had a hat on and a coat, it was snowing outside, I guess if it limits it, I guess it does. . . . Q. At this first line-up after the February 9, 1962 robbery, the one we are speaking about, do you recall telling one of the detectives there present that the robber was taller, heavier and lighter-skinned than the defendant? A. I think so. Q. Didn't you also tell them at this time, that is, the City Detectives, that the defendant's voice was much hoarser than the robber's? A. Yes, I did, his voice was hoarse in the line-up. . . . Q. The robber's voice was not hoarse? A. No, it was soft and not as hoarse as it was in the line-up, but it was sort of a loud whisper."
Appellant submitted a point for charge to the court which read as follows: "3. On the subject of the identity of the Defendant, the jury must keep in mind all the testimony of the prosecution and the Defendant. The burden of proving identification rests on the Commonwealth, which means proving Defendant's identity as that of the robber beyond a reasonable doubt. In determining whether or not the Commonwealth has met the burden, the jury should consider the fact that the identification of the Defendant was not made during a line-up 1 1/2 months after the first robbery, but was made 15 months after the first robbery. The jury should also remember that at the time of the line-up at which Miss Pinter identified the Defendant, she indicated to the detectives that the Defendant most closely resembled the robber of those standing in the line-up, but that she
[ 204 Pa. Super. Page 217]
informed the detectives that the robber was taller, heavier, and lighter-skinned than the Defendant and that the robber's voice was not so hoarse as that of the Defendant. Commonwealth vs. Stoltz, 147 Pa. Super. 117 (1942)." This point was "Refused for the reason that points ...