Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1965, No. 22, in case of Commonwealth of Pennsylvania v. Kenneth Williams.
Martin M. Krimsky, with him Kremer, Krimsky & Luterman, for appellant.
James D. Crawford, Deputy District Attorney, with him Carroll Connard and T. Michael Mather, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts.
Kenneth Williams was arrested in Philadelphia for murder and aggravated robbery. On February 8, 1966, he was convicted by a jury of murder in the second degree and robbery. Subsequently, the trial court granted a new trial. At the retrial, the Commonwealth proceeded on the murder indictment only, and Williams was convicted of voluntary manslaughter. A new trial motion was refused, and a prison sentence was imposed. This appeal followed.
The prosecution emanated from the fatal shooting of the proprietor of an auto supply store on December 20, 1964, in the furtherance of a robbery. At trial, the Commonwealth's case connecting Williams with the crime depended almost entirely on the testimony of Robert Mathis, an eyewitness, who was a customer in the store at the time. Williams did not testify personally, but presented the testimony of several witnesses to establish an alibi defense.
Immediately after the occurrence, Mathis provided the police with a description of the killer's approximate height and weight. He also described the felon as wearing a cap and a long trench coat. In the days immediately following, Mathis was shown "thousands" of "mug shots" by the police, but failed to identify any of those portrayed. On January 18, 1965, he was shown "12 to 15" photographs and selected one of Williams as the man guilty of the crime. The photographs exhibited to Mathis on this date included "mug shots" of different individuals and a "polaroid" photograph of Williams wearing a cap and a long trench coat. As a result of this identification, Williams was taken into police custody, and on January 19th a line-up was conducted in police headquarters. The line-up included Williams wearing a long trench coat and a cap, and four other black males with varied dress. Mathis viewed the line-up, and again picked out Williams as the perpetrator of the crime. During these proceedings, Williams did not have counsel.
A timely pretrial motion was filed to suppress all testimony concerning Mathis' identification of Williams from the photographs and line-up and evidence of certain utterances Williams allegedly made to the police when he was taken into custody, which might be construed as a consciousness of guilt. A hearing followed and the court refused to suppress the incriminating utterances. A determination of whether or not the
testimony concerning the pretrial identification should be suppressed was reserved for consideration and decision at trial.
At trial, after describing the operative circumstances of the crime, Mathis, without objection, identified Williams, who was then sitting in the court room, as the killer. The district attorney then commenced to inquire of Mathis about his pretrial identification, and counsel for Williams requested a hearing outside the presence of the jury to determine the admissibility of this particular testimony. Such a hearing was denied, ...