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February 11, 1965

Stephen Luther EVANS

The opinion of the court was delivered by: KRAFT

On October 31, 1963, shortly before 2 P.M., an armed man entered the office of the Almond Savings and Loan Association, Philadelphia, an insured institution, and robbed it of $ 1,346 in currency.

Defendant was arrested two days later, and was subsequently charged with the offense in a 4-count indictment under 18 U.S.C. § 2113. Following his conviction by a jury on 3 counts, defendant filed the present motion for a new trial.

 The defense was denial and an alibi. Defendant claimed that he was confined to his home with a cold during the entire day in question. The case against defendant thus turned on the issue of identification.

 Mrs. Finch, an employe of the Association, was an important witness for the Government. She was positive in her identification of the defendant as the robber, and gave a lucid account of the occurrence: She was seated at a desk in the rear of the office when defendant, wearing a pair of sunglasses, entered the front door. At this time a customer left the office and she was alone with defendant. Defendant paused momentarily, looked about and advanced towards her. She became frightened, laid the telephone transmitter on the desk and pushed a button which caused it to buzz in a nearby office. Defendant threw down a paper bag and told her not to be 'smart'. She saw a gun in his hand. Defendant ordered her to return the telephone to its place. She picked up the paper bag and went behind the counter to the teller's station. Defendant stood in front of the counter and ordered 'All the bills.' She removed the currency from the cash drawer and put it into the bag. About this time, Mr. LaSota, the Association's treasurer, came into the office. Defendant took the bag and fled. Mrs. Finch estimated that defendant was in the office for 'approximately three minutes.'

 Mrs. Finch identified defendant in a line-up three days after the robbery, and again at the magistrate's hearing the day following the line-up.

 Mrs. Fair, another Government witness, positively identified defendant as the man she saw walking toward the Association at the time in question, as she was standing on the sidewalk in front of a luncheonette, about 'six doors away.' She noted him particularly, she said, because 'it was drizzling rain and he was wearing sunglasses and it seems odd to see somebody with sunglasses when it rains.' She testified that she again saw defendant as she was emerging from the luncheonette a few minutes later, and that he was running 'in the opposite direction.'

 Mrs. Fair first identified defendant early in November, when she picked him out of a group of nine or ten men at a police station.

 Defendant now contends that the trial judge erred in failing to caution the jury as to the unreliability of identification testimony, and in refusing certain of defendant's points with respect thereto.

 The charge relating to identification testimony was based substantially on the holding in Commonwealth v. Kloiber, 378 Pa. 412, at p. 424, 106 A.2d 820, at p. 826 (1954).

 '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 unqualified, the testimony as to identification need not be received with caution -- indeed the cases say that "his (positive) testimony as to identity may be treated as the statement of a fact". Commonwealth v. Ricci, 161 Pa.Super. 193, 195, 54 A.2d 51, 52, Commonwealth v. Sharpe, 138 Pa.Super. 156, 159, 10 A.2d 120.

 'On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.'

 Defendant urges that Mrs. Fair's opportunity 'for positive identification' was not good, and that Mrs. Finch's testimony fails to meet 'all four of the required criteria announced in Kloiber,' and that therefore he was entitled to a cautionary instruction in the charge. Defendant relies strongly on Commonwealth v. Wilkerson, 204 Pa.Super. 213, 203 A.2d 235 (1964).

 We disagree completely with defendant's position. We believed at trial, and still believe, that the testimony of the two witnesses amply meets all of the criteria laid down in the first paragraph of Kloiber, as dispensing with the need for cautionary instruction. The question whether the identification testimony should be received with caution was clearly for the jury, and we so charged:

 'Whether or not you do receive it under those circumstances with caution is entirely for you under all the circumstances and the evidence, as is the degree of caution, if any, which you employ.'

 Wilkerson, supra, is inapposite. In that case, the identification testimony very clearly failed to meet two of the Kloiber criteria, and, accordingly, the Superior Court held that the trial judge should have warned the jury that such testimony must be received with caution.

 Certainly we cannot say as a matter of law that Mrs. Fair's opportunity for positive identification was not good. Defendant, when first observed by her, walked directly in front of her on the sidewalk shortly after high noon. It may be noted, too, that defendant's light skin and regularity of features were not usual in a Negro. Her attention was particularly attracted, as already stated, by the incongruity of sunglasses worn in a drizzling rain. Mrs. Finch had three minutes to observe defendant's appearance, characteristics, manner and bearing under circumstances likely to impress her. Both witnesses were positive in their identification of defendant at trial, and their identification, even after cross-examination, remained positive and unqualified. Defendant can point to no occasion before trial when either witness failed to identify defendant in personal confrontation. Defendant lays great stress on the fact ...

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