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COMMONWEALTH v. TURNER (12/11/72)

decided: December 11, 1972.

COMMONWEALTH
v.
TURNER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1972, No. 108, in case of Commonwealth of Pennsylvania v. John Langford Turner.

COUNSEL

J. Graham Sale, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 223 Pa. Super. Page 252]

The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Packel, J.:

The court below held that the police officer's reference at trial to photographs "in the robbery Section,"

[ 223 Pa. Super. Page 253]

    used for identification of the defendant, was harmless error because of the overwhelming evidence of defendant's guilt. Many reasons suggest themselves why the identification evidence was not overwhelming: the two identifying witnesses gave a description of 5'9" and 165-175 lbs., whereas the defendant was 6'1" and 220 lbs.; one said the defendant was pock-marked and the other testified she didn't notice pockmarks; and one witness had glaucoma, and the other witness' identification at the preliminary hearing was weak, but became more certain at trial.

Mr. Justice Nix in a very recent opinion, in Commonwealth v. Allen, 448 Pa. 177, 181-82, 292 A.2d 373, 375 (1972) pointed out the need to clarify the law in this area, and then set forth the rule to be applied, ...


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