Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 500 and 501, in case of Commonwealth of Pennsylvania v. Dwight Jones.
Douglas Riblet, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Albert Becker, Assistant District Attorney, with him James T. Ranney and David Richman, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Spaeth, J. Wright, P. J., and Spaulding, J., took no part in the consideration or decision of this case.
[ 229 Pa. Super. Page 238]
Appellant was found guilty by a jury of two counts of aggravated robbery; a prior trial for the same offenses had ended in a hung jury. Appellant claims that he is entitled to a new trial because the Commonwealth's cross-examination of him during the second trial was unnecessarily prejudicial in that the jury could infer from it that he had not taken the stand in the first trial. We agree.*fn1
The charges arise out of an alleged robbery of a seafood restaurant at 10:00 p.m. on January 12, 1972. The Commonwealth's evidence at the second trial consisted of testimony by two persons who said they were victims of the robbery, the two investigating officers, the arresting officer, and the owner of the restaurant.
Vivian Eason testified that she was employed at the restaurant on the night in question. She identified appellant as the man who entered the restaurant in the company of a second black male, pointed a gun at her, and removed approximately $45.00 from the cash register. She said that when Mr. Walton, her supervisor, started down a stairway that leads from his room into the store to see what was going on, appellant ordered
[ 229 Pa. Super. Page 239]
him to come down and then removed money from one of his pockets. She also said she observed appellant's face throughout this incident, which lasted about five minutes; although she had never seen appellant on any other occasion, her in-court identification was positive and unshaken on cross-examination. Variations from testimony she had given at the first trial (as to what appellant had been wearing, the presence of a scar on his face, and the exact amount of money taken) were used on cross-examination in an attempt to impeach her credibility. She denied having told the investigating officers that the same men had robbed the store before; her testimony was muddled as to whether Mr. Walton had so informed the officers.
Officers Paul Cathers and James Abbott, who had been sent to the scene of the robbery, testified next. Officer Cathers testified that Mrs. Eason and a "colored male" (this is apparently a reference to Mr. Walton) were there, that the latter said that he had been robbed by the two men before, and that Mrs. Eason gave him a general description of the men and what they were wearing. Officer Abbott testified that there were three complainants, Mrs. Eason and two males, and that he believed they all had said they had witnessed the robbery. On cross-examination he was questioned about which man had the gun and about whether it is normal police procedure to report the suspect with the gun as the "number one man" on the standard report form. He stated, "Number one is whoever they give you first." His testimony from the first trial was used in an effort to impeach his credibility in regard to this recollection of which man he had been told had been carrying the gun.
Lemuel Walton described the incident in substantially the same way as Mrs. Eason and identified appellant as one of the robbers. He added that he knew appellant ...