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COMMONWEALTH v. RODRIQUEZ (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
RODRIQUEZ, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1972, No. 40, in case of Commonwealth of Pennsylvania v. Walfredo Rodriquez.

COUNSEL

Elaine DeMasse and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

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 Van der Voort, J.

Author: Van Der Voort

[ 234 Pa. Super. Page 295]

The Appellant, Walfredo Rodriquez, files this direct appeal from his conviction and sentencing on robbery charges. The charge arose out of a purse-snatching incident which took place on a Philadelphia Street on June 9, 1972. All of the Appellant's claims on appeal revolve around the identification evidence which provided the basis for his conviction.

The salient facts of record show that the victim was accosted in the mid-morning of that Spring day by the thief, who, after taking her purse, fled on foot. After reporting the incident, the victim was taken to a police station. The appellant, who was picked up in the vicinity of the robbery, was taken to the same facility.

At the Appellant's preliminary hearing, the victim testified that she identified the Appellant at the police station that morning. It was revealed at the preliminary hearing that the victim was taken to a doorway; when she looked through the doorway, she saw the Appellant alone in the room. She was asked by defense counsel if the police said anything to her at that time. She replied:

[ 234 Pa. Super. Page 296]

"About him?" The defense attorney replied affirmatively and the victim testified: "He asked me if that was the man and I said, yes, that was him."

The defense counsel, at preliminary hearing, then asked the following of the victim: "Did he ever ask you anything or tell you anything before that time?" No answer was forthcoming as the Commonwealth's counsel raised an immediate objection which was sustained. The victim did not testify further about her identification of Appellant in the police station.

Many twists of fate result in issues for litigation in our courts; in the instant appeal the questions which exist were all created by the untimely death of the victim, from natural causes, after the preliminary hearing, but before the trial. Prior to trial, it is apparent that the Commonwealth made known its plans to introduce at trial, a transcript of the victim's preliminary hearing identification testimony. The Appellant filed a motion to suppress such evidence but that request was denied and the transcript of the preliminary hearing was used by the Commonwealth as part of its proof at trial.

During the course of the trial, a police officer revealed for the first time that the victim had initially identified Appellant when he was brought into the room where she was being questioned. The police officer further testified the Appellant was taken into that room in handcuffs by another officer. According to the officer, the victim looked at the Appellant on that occasion and said, "That's him." Later, she was ...


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