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COMMONWEALTH v. PENNEBAKER (06/14/73)

decided: June 14, 1973.

COMMONWEALTH
v.
PENNEBAKER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Mifflin County, No. 31 of 1968, in case of Commonwealth of Pennsylvania v. Ronald E. Pennebaker.

COUNSEL

Richard M. Mohler, Public Defender, for appellant.

Horace J. Culbertson, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 224 Pa. Super. Page 512]

Appellant was found guilty of burglary and larceny, and sentenced to serve a term of imprisonment of not

[ 224 Pa. Super. Page 513]

    less than three and one-half nor more than seven years. He now appeals, contending that the lower court erred in allowing the victim of the crime to make an in-court identification of him and that prejudicial error was committed because he was allowed to appear at trial clothed in a prison uniform.

The burglary occurred at the Barnett Electrical store in Milroy, Pa., on February 13, 1968. Clair C. Barnett, the owner of the store, testified that he was returning to the rear of the store between 12:00 and 12:10 A.M., when he saw a man walking out of his office carrying a radio. He observed the man walking from that office to an adjacent one, and watched his rummaging through the drawers of a desk. Finally, as he called out, the burglar froze for several seconds, and then fled. Barnett called the police and supplied them with a detailed description of the burglar, noting that the person had a distinctive right eye and a deeply dimpled chin. He also told the police that the burglar was wearing a blue sweater with a light colored shirt underneath.

Later that day, seven photographs were shown to Barnett, none of which were of appellant. Barnett made no identification on this display. On the following day, four photographs were shown to Barnett, three of which were of appellant, but taken at different times: one in 1959, one in 1960, and one in 1965. Barnett stated that the person depicted in the 1965 photograph was the person in his store on the night of the burglary. Appellant was arrested on that same day and taken to Barnett's store where Barnett stated that he was "100% sure" that appellant was the burglar.

Prior to trial, appellant moved to suppress all identifications. The lower court held a "taint hearing" during which appellant was placed in a line-up with six persons of similar physical characteristics. Barnett

[ 224 Pa. Super. Page 514]

    picked out the appellant as the burglar. After the hearing, the lower court ruled that, because of the suggestive nature of the out of court procedures, those identifications must be suppressed. The lower court, however, ruled that Barnett would be allowed to make an in-court ...


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