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COMMONWEALTH v. MCMILLION ET AL. (06/12/69)

decided: June 12, 1969.

COMMONWEALTH
v.
MCMILLION ET AL., APPELLANTS



Appeal from judgments of Court of Quarter Sessions of York County, May T., 1967, No. 67, in case of Commonwealth of Pennsylvania v. Harry Lee McMillion et al.

COUNSEL

Donald L. Reihart, Public Defender, for appellant.

John T. Miller, First Assistant District Attorney, with him John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 215 Pa. Super. Page 308]

These appeals are from the judgment of sentence of the Court of Quarter Sessions of York County after a trial by jury and convictions on two counts of burglary and larceny.

It appears that on May 3, 1967, in early daylight, three men broke the plate glass window of a jewelry store in the City of York, Pennsylvania, scooped out some jewelry and fled. On May 13, 1967, at about the same time of day, three men smashed the window of another jewelry store, scooped out some jewelry and fled. The two appellants were apprehended a short time after the second occurrence, but the third man has not been found.

Both of the above occurrences were observed by the same eyewitness who later identified the defendants in a cell at police headquarters, at the preliminary hearing and at the trial, and observed the offenders for about an hour at the time of the second occurrence.

Appellants contend the court below erred by permitting identification testimony to be introduced in evidence over objection and that it violated due process of law.

This case is not controlled by U. S. v. Wade, 388 U.S. 218 (1967), nor Gilbert v. California, 388 U.S. 263 (1967), since they are not to be applied retroactively. The guidelines set forth in Stovall v. Denno, 388 U.S. 293 (1967), do apply and were met in this case. The court held a separate hearing with regard to the identification testimony and the record clearly indicates the identification was based upon observation of the defendants at the time of the occurrences.

[ 215 Pa. Super. Page 309]

Appellants also contend that the participation by the trial court in the questioning of witnesses deprived the appellants of a fair and impartial trial. We find no merit in this. The court here merely attempted to clear up possible confusion in the minds of the jury.

The appellants also contend the court below committed basic error in its charge to the jury. ...


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