Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1971, No. 993, in case of Commonwealth of Pennsylvania v. Willie James Sansbury.
John Bartle and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 229 Pa. Super. Page 62]
Defendant, Willie James Sansbury, appeals from the judgment of sentence of the lower court on grounds relating to suppression of evidence and waiver of jury trial.
At a non-jury trial defendant was found guilty of assault and battery, aggravated robbery and carrying a firearm on a public street, but not guilty on other charges brought against him.
At defendant's pre-trial suppression hearing the lower court suppressed the victim's out-of-court identification of defendant based on mug shots, but denied suppression as to the in-court identification of defendant by the victim and a witness.*fn1
The facts of the case are as follows: On November 5, 1971, around 4:30 in the afternoon, Timothy Powers, a bartender at Club 20 at North Gratz Street, Philadelphia, was robbed by two men while he was seated in an automobile parked near the place of his employment. The two men were identified by Powers as the defendant and one Willie Davis. Willie Davis shot and wounded Powers in the process of the robbery and also stabbed him with a knife. At one point defendant also held the gun on Powers. The robbery lasted a full five minutes during which time Sansbury and Davis threatened Powers constantly with physical harm. During this time Powers had the opportunity to fully observe the defendant for identification purposes.
A Mr. Dowling, who was seated in the Club 20 bar, when informed that Powers was being robbed, rushed outside to assist him but was prevented from doing so when defendant pointed a gun at him and ordered him to stop, causing Dowling to return to the bar. But
[ 229 Pa. Super. Page 63]
witness Dowling did have sufficient opportunity to observe Sansbury for the purpose of identification.
Since the district attorney conceded that the photographic identification in this case was improperly suggestive, we will consider defendant's contention that the court erred in not suppressing the in-court identification of defendant. There was no evidence in the case that the in-court identification of the defendant by Powers, the victim, and Dowling, the witness, were in any way tainted by the out-of-court identification. United States v. Wade, 388 U.S. 218 (1967).*fn2 Dowling identified defendant prior to the time any photographic identification was made of defendant. Powers was in a hand-to-hand struggle with the defendant and Willie Davis for 5 minutes during daylight hours and, in addition, was familiar with defendant, having seen him 7 or 8 times ...