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COMMONWEALTH v. CARTER (11/28/72)

decided: November 28, 1972.

COMMONWEALTH
v.
CARTER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 1419, in case of Commonwealth of Pennsylvania v. Charles E. Carter.

COUNSEL

Alan R. Gordon, with him Joseph Hakun, and MacCoy, Evans & Lewis, for appellant.

Albert L. Becker, 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.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Packel, J. Hoffman, J., joins in this dissenting opinion.

Author: Per Curiam

[ 223 Pa. Super. Page 149]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Packel, J.:

This robbery conviction stands or falls upon the sole identification by the victim. A motion to suppress her identification testimony on the ground that a lineup was unnecessarily suggestive was denied and the defendant was found guilty in a trial without a jury.

On an admittedly dark evening, before street lights were turned on, a person grabbed the victim's arm from the rear and demanded money. She faced the person for a half minute or for a minute, during which she took a change purse out of her pocketbook and gave the person approximately $3. About ten minutes later she, then accompanied by her husband, saw the defendant running to a car which was about two blocks from the scene of the robbery.*fn1 They both testified that she then said that the defendant "looked like the man that robbed her." She testified that she had given her husband a description of the robber, but he testified that she had not given him any description. The husband

[ 223 Pa. Super. Page 150]

    took the license number of the car, as a result of which the police learned that the ...


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