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COMMONWEALTH v. D'ANGELO (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
D'ANGELO, APPELLANT



Appeal from order of Superior Court, No. 1055, Oct. T., 1968, affirming judgment of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1968, No. 2474, in case of Commonwealth v. Bartholomew D'Angelo.

COUNSEL

David Rudovsky, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting 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.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones dissents.

Author: Eagen

[ 437 Pa. Page 332]

On May 1, 1968, Bartholomew D'Angelo was convicted of aggravated robbery in Philadelphia after a trial before a judge without a jury. Subsequently, motions in arrest of judgment or a new trial were denied by a court en banc, and a prison sentence was imposed

[ 437 Pa. Page 333]

    by the trial judge. On appeal, the Superior Court affirmed the judgment without opinion. Judge Hoffman filed a dissenting opinion in which Judge Spaulding joined. See 214 Pa. Superior Ct. 76, 251 A.2d 804 (1969). We decided to review the case and granted allocatur.

The record discloses the following:

About 6:20 p.m. on December 23, 1967, a stranger entered a grocery store operated by Martin Fine in the West Oak Lane Section of Philadelphia. As Fine approached him and was about three feet away, the stranger announced, "I've got a gun, this is a hold-up, I want your money." Fine ducked behind a meat counter and threw a box of facial tissues in the direction of the stranger, whereupon the latter fled from the store. The whole incident consumed about two minutes.

When questioned by the police about fifteen minutes later, Fine described the hold-up man as being a male about 21 years of age; about five feet, six inches in height and about 150 lbs. in weight;*fn1 as wearing a black jacket, a white turtleneck sweater and sunglasses; and, as having a mustache and dark blond hair.

At trial, Fine identified D'Angelo as the holdup man.*fn2 Extensive cross-examination failed to shake his testimony. Defense counsel objected to the evidentiary use of this testimony, contending that its genesis was a pretrial police line-up ...


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