Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1972, Nos. 1013 and 1014, in case of Commonwealth of Pennsylvania v. Michael Thorne.
Reggie B. Walton and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
John D. Cooper, 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 Watkins, P. J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.
[ 234 Pa. Super. Page 95]
On April 17, 1972, at about 11:30 P.M., the proprietor of a restaurant closed his shop but remained in the store awaiting the arrival of a regular customer who had called in an order. When the customer arrived, the owner of the store unlocked the door to let him in. As he entered, Michael Thorne, the appellant, forced his way in at gun point and ordered Giangreco to back up to the middle of the store. He then ordered him to open the cash register and scoop up the money while holding Giangreco and Waltz, the customer, and two other employees at bay with his gun. Giangreco, Waltz and an employee, Gary Goldner, testified to these facts and to the identity of the robber.
On May 25, 1972, Giangreco and Waltz attended a line-up in which the appellant (who had been arrested on another charge and was used as a filler) was exhibited but they failed to identify him.
As a result of information obtained by police, the appellant was arrested while in custody and charged with the current crimes. He was told of the charges, advised of his rights and, after waiving them, gave a statement to the police. On June 13, 1972, Giangreco and Waltz attended a preliminary hearing and identified him as the robber as soon as he entered the room.
The appellant moved to suppress the identification evidence of Giangreco and Waltz and the statement given to the police by the appellant. But, after the case was listed for trial, and continued several times, counsel for the appellant, the public defender, filed a memorandum with the court which is a part of the record and withdrew the petition for suppression. He believed the statement to be exculpatory.
When the case was called to trial, the trial attorney for the appellant moved to reinstate the petition after some members of the jury were chosen and the rest of the panel awaiting call. The petition was refused by the court
[ 234 Pa. Super. Page 96]
below because the appellant had ample opportunity to do so prior to trial and no good could be accomplished by now having a collateral hearing at that stage of the proceeding. It should be here noted that the burglary took place on April 17, 1972; that the preliminary hearing took place on June 13, 1972, and the case was first listed for trial on August 29, 1972. The trial of the case began on January 15, 1973 when the motion to reinstate was made.
Appellant contends that this was error with which we cannot agree. The eye-witness had ample opportunity to observe the appellant at the scene of the crime, gave an adequate and accurate description to the police and were able to immediately identify him at the preliminary hearing under circumstances which in no way suggested appellant was the perpetrator of the crime. A third eye-witness, as well as these two, at trial identified him without any opportunity to see him since the night of ...