Appeal from judgment of Court of Quarter Sessions of Philadelphia County, Jan. T., 1968, No. 2474, in case of Commonwealth of Pennsylvania v. Bartholomew D'Angelo.
David Rudovsky, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
James D. Crawford, Assistant District Attorney, with him Joseph J. Musto, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
[ 214 Pa. Super. Page 77]
Judgment of sentence affirmed.
Dissenting Opinion by Hoffman, J.:
Appellant was convicted of aggravated robbery. This appeal, which attacks the prosecuting witness' identification, follows:
At trial, the prosecuting witness testified that he was held up at gunpoint in his grocery store at which time he faced the robber for one or two minutes. Fifteen minutes later, the prosecuting witness notified the police of the robbery and told them that the robber "weighed about 155 pounds, wore a black leather jacket, a white sweater, turtle neck, he had sun glasses and I said his hair was sort of blondish, very dark blonde hair," and that he was "about five foot six."
Two weeks after this incident the prosecuting witness came to a police station to observe a lineup wherein he identified appellant as the robber.
The actual participants in the lineup were described at trial by a member of the Defender Association who represented appellant at the lineup. In his testimony, which was never contradicted or challenged, he stated that the police assembled five men, including appellant, all of whom were stripped to the waist. Three men (who were in fact police officers) wore regulation dark blue police trousers, with stripes running down the outside of each pants leg. In addition, one officer weighed 185 pounds and was five feet, ten inches tall, four and one half inches taller than appellant. ...