Appeal from order of Superior Court, Oct. T., 1969, Nos. 932 and 933, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1967, Nos. 2549 and 2550, in case of Commonwealth of Pennsylvania v. Frank D. Spencer.
John W. Packel, Assistant Public Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Richard Max Bockol, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.
This is an appeal from the judgment of sentence imposed by the Common Pleas Court of Philadelphia. With two judges concurring in the result, the Superior Court affirmed. Com. v. Spencer, 216 Pa. Superior Ct. 169, 263 A.2d 923 (1970). We granted allocatur.
The charges against appellant stem from an unlawful entry into the apartment of a Patricia Fitzgerald on July 3, 1967. While in her bedroom, Mrs. Fitzgerald was suddenly confronted by a man brandishing a pistol who ordered her to move toward the bed. Fearing a possible rape and/or harm to her six-year-old daughter, Mrs. Fitzgerald began screaming and the man fled. Appellant was later arrested, indicted and found guilty by two juries on the charges of assault and unlawful entry.*fn1
On appeal we are confronted with two distinct issues: (1) whether it was reversible error for the trial
court to permit the introduction of certain identification testimony; and (2) whether the court erred in the use of the "Allen" charge. (Allen v. United States, 164 U.S. 492, 501, 502 (1896)).
Following appellant's arrest, a police stand-up*fn2 with three other men was conducted at the East Detective Division at Front and Westmoreland Streets in Philadelphia on July 6, 1967, and appellant was identified by Mrs. Fitzgerald as the man who entered her apartment. Since counsel was neither present nor waived in this stand-up occurring twenty-four days after the United States Supreme Court delivered its landmark decisions in United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), it would be error to admit any evidence pertaining to the stand-up or any in-court identification evidence which is tainted by the stand-up. A reading of the preliminary hearing record convinces us, as it convinced both trial judges, that any identification by Mrs. Fitzgerald based on appellant's dental make-up would be improper since Mrs. Fitzgerald first noticed that irregularity during the stand-up. Nonetheless, the second trial judge inadvertently permitted a testimonial identification of appellant based on his teeth.*fn3
Although the admission of the "dental" testimony tainted by the stand-up identification was error, Mrs. Fitzgerald's testimony was not objected to by defense counsel and her in-court identification was unequivocal in all respects, at all stages of these proceedings, and we conclude the receipt into evidence of this improper identification testimony was harmless error within the meaning of Harrington v. California, 395 U.S. 250 (1969), and Chapman v. California, 386 U.S. 18 (1967). See, e.g., Com. v. Williams, 440 Pa. 400, 405-08, 270 A.2d 226, 228-30 (1970) (concurring opinion). However, we recognize that this conclusion begs ...