Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Nov. T., 1967, No. 298, in case of Commonwealth of Pennsylvania v. Charles Lee.
Edward F. Kane, with him Bean, DeAngelis, Tredinnick & Giangiulio, for appellant.
Richard A. Devlin, Assistant District Attorney, with him Paul W. Tressler, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Montgomery, J., would affirm on the opinion of Judge Lowe.
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In this appeal, appellant attacks his conviction which was based upon a post- United States v. Wade, 388 U.S. 218 (1967), identification by the prosecuting witness.
Appellant was charged with the holdup of a retail store. At trial, the manager of the store testified that two men held him up at 11:30 at night. At 2:00 a.m. the manager was brought to the police station where the police had assembled five persons, four men and a woman in a hearing room. On direct examination the manager stated that the police "asked me if I wanted to identify two of them. So I went in and I wasn't really that sure, you know, about the one guy -- Q. Which guy were you not sure of? A. Not this guy (indicating), the other boy, the other fellow who was released.
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. . . Q. What about (appellant)? A. I definitely identified him. Q. At the police station, when you made that identification was there any doubt in your mind that it could be somebody else? A. No."
On cross-examination, however, the witness was asked to elaborate on the circumstances surrounding the identification.
"A. There were four males and one female altogether . . . I didn't point anyone out the whole time I was in there. I walked around. They told me to go in and walk around and see if I recognized anybody. . . . Q. Isn't it a fact that you walked into that hearing room, looked around, and said to the police officer, 'I can't identify any of these men?' . . . A. Yes, I did say that. Q. You looked at everyone and you said you couldn't identify anybody, is that right? A. Right. . . . Q. You did not identify anybody the first time. You went out of the hearing room. Now, what did you do when you came out of the hearing room? . . . A. The police officer took me over to the car and that was over at Danny's Diner over in Bridgeport. . . . I recognized the car right away (as belonging to the robbers who held up the store). . . . Q. What did (the police) tell you about the car? A. He didn't say the first thing to me, the officer. He just, you know, as soon as we pulled in the parking lot, I said 'That's the car,' and there were about ten cars in the parking lot at the time. . . . Q. Now, you recognized the car, and did the police say anything to you at that time? . . . A. . . . when I went there and I said that is the car, they said, well, this was -- they didn't tell me that the boys, that there were actually five people in there. They just said that the five people were picked up because they all got out of that car, allegedly. Q. So the police told you that the five people over in that room had gotten out of that car? A. Right. Q. Then they asked
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you if you wanted to go back and try your luck again, right? A. They asked me would I like to go in again. So I said OK, fine. Q. So you went in again. Now what did you do that time? A. Well, (appellant) wasn't sober yet, and the other boy I wasn't really sure of him, you know, but it was supposed to be two boys, so I just guessed and I said those two boys. . . . I mean, it definitely did look like the boy, yet I wouldn't want to prosecute him unless I was ...