Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1973, Nos. 830 and 831, in case of Commonwealth of Pennsylvania v. Thomas H. Jones.
John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Maxine J. Stotland, 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 Cercone, J.
[ 231 Pa. Super. Page 324]
This is an appeal from the appellant's conviction on charges of aggravated robbery and burglary.
On April 20, 1973, a man entered Kelly's Restaurant at 8:45 P.M. and asked the cashier to change a five dollar bill. The cashier did this and the man left. Fifteen minutes later this same man again entered the restaurant and said to the cashier, while displaying a gun, "Give me your big money and don't scream." The cashier gave the man $265 and he left the restaurant. The cashier immediately notified the police. The cashier's husband who was also in the restaurant and observed the robbery followed the man and observed him running down Commerce Street. At this time two men who turned out to be plainclothes Philadelphia policemen were leaving a White Tower across the street, and the cashier's husband told them that Kelly's had been robbed. They observed the man running down Commerce Street and upon apprehending him found a gun in his belt and $265 in his pocket. They then brought the man back to Kelly's where the cashier's husband positively identified him.
This identification is the basis of the first issue raised in the appellant's appeal. The Pennsylvania law concerning on-the-scene identifications is thoroughly and clearly set out in the recent case of Commonwealth v. Turner, 454 Pa. 520, 523-524, 314 A.2d 496 (1974). "Evidence of identification should not be received at trial if the circumstances of the pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification, Stovall v.
[ 231 Pa. Super. Page 325]
Denno, 388 U.S. 293 (1967). [Additional citations omitted.] However absent some special elements of unfairness [emphasis added], we do not believe that prompt on-the-scene confrontations fall within this ambit of suggestiveness. We find support for this position in the opinions of the federal courts which hold that an in-custody-at-the-scene identification made shortly after the commission of the crime does not violate due process. [Citations omitted.] The Russell court [Russell v. United States, 408 F.2d 1280 (D.C. Cir. 1969)] . . . recognized the high degree of suggestiveness in confrontations where a single suspect is viewed in the custody of the police. However it decided that the reliability inhering in an immediate identification and the rapid release of a mistaken suspect outweighed the prejudice. We believe that the close proximity in time and place does greatly reduce the chance of misidentification and we agree that mistaken suspects ought not suffer the hardship and embarrassment inuring to protracted police custody. Furthermore, should the prompt on-the-scene confrontation fail to render a positive identification, the police may quickly resume their search for the guilty party."
The appellant does not dispute the Turner rule but feels that in this case there are several "special elements of unfairness" which result in a violation of the appellant's right to due process. First the appellant contends that the arresting officer might have been holding in his hand the gun taken from the appellant when the appellant was taken back to Kelly's for identification. The basis for this claim is that during cross-examination of the cashier's husband at trial, he stated that the officer might have had the gun in his hand when he returned to Kelly's. But he was not certain of this and when later asked, "Did you see the gun at the same time you saw the defendant" he answered "I think I might have seen it after I said, "That's him." The
[ 231 Pa. Super. Page 326]
police officer's testimony on this point ...