Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1973, No. 1772, in case of Commonwealth of Pennsylvania v. Robert Garland.
Richard Farber, Leonard Sosnov, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Benjamin H. Levintow, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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. Spaeth, J., concurs in the result.
[ 234 Pa. Super. Page 242]
The appellant, Robert Garland, was found guilty after a jury trial of two counts of armed robbery and one count of criminal conspiracy. After his motions in arrest of judgment or for a new trial were denied, appellant was sentenced to three concurrent terms of two to ten years in prison. Thereafter, appellant perfected the instant appeal in which he alleges: (1) that the lower court erred in not suppressing his in-court identification by one of the victims; and (2) that the lower court erred in not declaring a mistrial because of allegedly prejudicial remarks made by the prosecutor in his summation. We disagree with appellant's arguments and will affirm.
At approximately 10:30 A.M. on July 24, 1973, two men entered Joe Ziolkowski's auto repair shop and began
[ 234 Pa. Super. Page 243]
talking with his son, Henry. Joe looked up and saw the men in the brightly-lit shop and returned his attention to repairing a radiator. Shortly thereafter one of the men, later identified as the appellant herein, approached Joe and, grabbing a ball peen hammer, angrily and profanely ordered him into another room with his son. Joe later described this confrontation as "eye to eye . . . close enough to spit in his face. . . ." After the two men had relieved the Ziolkowskis of their money and wallets, they inexpertly bound them together with a length of rope and ran out of the shop. The Ziolkowskis quickly extricated themselves and went to the police station to report the robbery.
Because of the well-illuminated shop, and his proximity to one of the assailants, Joe Ziolkowski was able to provide the following description which admittedly fits the appellant: "He had a crushed hat on, a tan undershirt with a heavy strap on it, an Afro hairdo, a thin mustache." Joe Ziolkowski also stated that the robber was a tall, thin black man with a medium-dark complexion. The police then showed Joe a three-inch stack of photographs from which he readily selected the appellant's picture.*fn1 However, Henry Ziolkowski, the son, was equivocal and could not conclusively state that any of the pictures matched one of the robbers.
Prior to Garland's preliminary hearing, his defense counsel requested that a line-up be conducted to assure that a tainted identification would not result from the one-on-one confrontation at the preliminary hearing.
[ 234 Pa. Super. Page 244]
Upon learning of Joe Ziolkowski's full and accurate description of Garland and his selection of Garland's photo from the stack at the police station, however, the magistrate denied the request. Both Joseph and Henry Ziolkowski ...