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COMMONWEALTH v. HARVEY (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
HARVEY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1973, Nos. 104 and 105, in case of Commonwealth of Pennsylvania v. Norman Harvey.

COUNSEL

Dennis T. Kelly, Deputy Defender, John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

David Richman, Douglas B. Richardson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First 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 Watkins, P. J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Watkins

[ 231 Pa. Super. Page 87]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County by the defendant-appellant, Norman

[ 231 Pa. Super. Page 88]

Harvey, after conviction before a judge without a jury of aggravated robbery and burglary. Concurrent sentences of four (4) to eight (8) years were imposed on the charges.

The issue in this case was the refusal of the court below to suppress a photographic identification made out of court prior to the appellant's arrest during a criminal investigation by the police. The appellant further complains that the in-court identification was legally deficient.

The facts are as follows: On December 17, 1972, at about 5:45 P.M., the victim was preparing to leave his home when he opened the door on hearing someone on the porch. When he opened the door, there was a man holding and pointing a sawed-off shot gun at him. This man he later identified as the appellant.

The man ordered him into the house and then entered with an accomplice. He was forced to lie down alongside his wife and daughter and all three were bound. His wallet was taken as well as cameras and camera equipment. The police were given a description of the robbers, one was described as 6' 6" tall, approximately 170 pounds with a close-cropped bush haircut. The appellant was observed by the victim in a well-lighted doorway for approximately 30 to 45 seconds at close range.

The investigating detective testified that later, relying on the description given he selected eight (8) photographs for the victim to examine. These photographs were placed on a table at the police station. He was alone when he examined the ...


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