Appeal from judgment of Court of Quarter Sessions of Philadelphia County, Nov. T., 1962, No. 447, in case of Commonwealth of Pennsylvania v. Orie Paschall.
David I. Grunfeld, for appellant.
James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Montgomery, JJ., dissent.
[ 214 Pa. Super. Page 475]
Appellant maintains that his conviction by a judge sitting without a jury is not supported by the evidence.
The facts in this case are as follows.
On the evening of October 26, 1962, appellant, his pregnant wife and two friends visited the G. G. Bar in Philadelphia. Shortly thereafter, appellant's wife took sick or began labor and appellant, dressed in a white rain coat, left the bar after announcing his intention to get a car so that he could take his wife to the hospital. The bartender testified that about five or ten minutes later, a man, six feet tall, dressed in a black trench coat with a black veil over his face, entered the bar, approached him and displayed a gun stating: "This is it." In response, the bartender handed the robber a bag of money. The robber left, the bartender walked to the back of the bar, borrowed a dime, and called the police. He did not mention to the patrons that he had been robbed.
Five minutes after the alleged robbery, appellant returned to the bar dressed in a white raincoat. The police arrived at about the same time. They drove appellant's wife to the hospital. At least one hour after the alleged robbery and fifteen to twenty minutes after the bartender went to the police station for
[ 214 Pa. Super. Page 476]
extended interrogation, he identified appellant as the robber.
The basis for the identification was stated at trial.
"Q. Is there any question in your mind, Mr. Baker, but that the defendant is the man who held you up? A. Well, there are just two fellows in our neighborhood built like this boy. . . . Q. You knew at the time he was the robber, or did you think it might have been somebody else? A. I had to pull my mind together. Q. What makes you certain that (appellant) is the man, rather than Mr. Rush? A. Well, Mr. Rush was there when the holdup occurred. Q. But still you believe that Mr. Rush might have been the one who committed the robbery? A. Yes. . . . Q. You mentioned to the District Attorney you were not sure, are you still not sure? A. I will put it like this: The man had a veil over his face, but he had a built (sic) I could recognize. . . . Q. Didn't you say ...