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COMMONWEALTH v. WORTHAM (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
WORTHAM, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, Nos. 0093 to 0097, inclusive, in case of Commonwealth of Pennsylvania v. Dorothe Wortham.

COUNSEL

Charles S. Lieberman, and Wolov, Rosenberg & Alexy, for appellant.

Glenn S. Gitomer, 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.

Author: Cercone

[ 235 Pa. Super. Page 27]

Appellant, Dorothe Wortham, was tried before a jury and found guilty of burglary and four counts of aggravated

[ 235 Pa. Super. Page 28]

    robbery. From the judgments of sentence, this appeal followed.

Appellant contends she is entitled to a new trial because the court below allegedly committed reversible error in the following instances: (a) refusing to suppress the in-court identification of the appellant; (b) improperly admitting into evidence certain handguns; (c) incorrectly instructing the jury with respect to the burden of proof in an alibi defense; and (d) denying appellant's demurrer to the burglary charge.

On October 17, 1972, at approximately 4:00 o'clock p.m., two men brandishing handguns and a woman wearing a red bush wig and carrying a long black shoulder bag, entered and robbed Benny's Bar in Philadelphia. The patrons of the bar were also robbed and two were badly beaten. While the robbers were making their exit, an employee of a mill plant across the street from the bar obtained a partial license number of the automobile used in their escape. Shortly after the robbery, based on descriptions of the car resulting from an on-the-scene police investigation and the partial license number, the police located what they believed to be the escape vehicle. While the automobile was under police surveillance the appellant and her husband, together with Anthony Bell and Nathaniel Williams, came to the car and were immediately placed under arrest.

The following day on October 18, 1972, approximately twelve hours after the robbery, a search warrant was executed for a dwelling occupied by the appellant and her husband, and Anthony Bell. The Worthams occupied the second floor rear bedroom, and Bell the second floor middle bedroom, each being openly accessible to the other. Found in the Wortham's bedroom were a red bush wig and a black shoulder bag similar to those described by two eyewitnesses as those worn by the woman robber. In Bell's room a small .22 calibre starter pistol and a pellet gun were found secreted in a toy chest.

[ 235 Pa. Super. Page 29]

Appellant's motion to suppress in-court identification was grounded on the fact that approximately six hours after the robbery, while in police custody, she was placed in a room equipped with a one-way mirror. Appellant's counsel was not present. Marie VanKirk and Charles Harris, eyewitnesses to the robbery, were separately shown the appellant and asked if they could identify her as a participant in the robbery. Neither witness was able to identify the appellant at this "show-up." Mr. Harris and Mrs. VanKirk next saw the appellant at the preliminary hearing, nine days later, at which time they both positively identified her as the female participant in the robbery. At the suppression hearing and again at trial they unequivocally identified appellant as the female participant in the robbery. ...


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