Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division at No. 3016 July Term, 1974. NO. 51 OCTOBER TERM, 1976.
George Gershenfeld, Philadelphia, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, Willow Grove, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring and dissenting opinion in which Jacobs and Hoffman, JJ., join.
[ 245 Pa. Super. Page 377]
Appellant was found guilty by a jury of robbery, theft of movable property, rape, involuntary deviate sexual intercourse, simple assault -- attempt, possession of a weapon with intent to employ it criminally, felonious restraint, recklessly endangering another person, terrorist threats and criminal conspiracy. Timely post-trial motions were made and denied. Following evaluations by the Court Study Team of the Norristown State Hospital, appellant was sentenced to two concurrent 10 to 20 year prison sentences and to two concurrent 2 1/2 to 5 year prison sentences, the sentences to run consecutively to a Montgomery County sentence which the defendant was
[ 245 Pa. Super. Page 378]
then serving and consecutively to a sentence for murder in a Philadelphia case which sentence had not yet been imposed because of a pending appeal.
Three issues are raised on appeal: sufficiency of the identification of appellant, authority of the trial judge to direct that sentences run consecutively with a sentence not yet imposed in a murder case, and sufficiency of the evidence.
In the late evening of July 23, 1974, Steven Gazey, aged 21, and his girlfriend were riding in a 1967 fourdoor Pontiac automobile when two young men ran toward the passenger side of the car as it turned from County Line Road onto York Road in Hatboro, Montgomery County. Thinking they were friends of his because one of them looked familiar, Gazey asked the girl to open the door so that he could hear what the men were saying. She unlocked the back door and the two men jumped in. They said they were going to Willow Grove, approximately three miles away, and Gazey agreed to take them there. He proceeded south on York Road. Midway through Hatboro he stopped at a traffic light and spoke with a number of his friends standing or seated near the curb, including Michael Faywewicz, one of his best friends, who was sitting under a street light at the curb. The light changed and the Gazey car continued south on York Road. As it approached a four-way stop sign in Willow Grove, the man sitting directly behind the young lady put a gun to the back of her neck and asked if she or Steven Gazey had any money. The man took Gazey's wallet and the girl's purse. The car was halted at a stop sign for the duration of the robbery. For about the next five minutes, Gazey was ordered to drive from point to point as the men in the rear seat directed. The men then ordered him to turn up the rear view mirror so that he could not see into the back seat, and the young lady was ordered into the back seat at gunpoint and her clothing forcibly removed. Each of the men then raped her in
[ 245 Pa. Super. Page 379]
turn and forced her to take part in involuntary deviate sexual intercourse while the other kept the gun at the back of Gazey's head. During the course of this atrocity, which lasted for a period of thirty to forty-five minutes, one of the men also punched the young lady in the side. She was then ordered back into the front seat. Gazey was then directed to drive around, away from any main roads, for fifteen or twenty minutes; but was finally ordered to stop at the intersection of Osbourne and Rubicam Avenues in Abington Township, Montgomery County, where the two young men left the car. Before leaving, they warned Gazey and his companion not to call the police or else "We'll get you". They told the young couple that they had taken identification from the wallet and purse and knew who they were and where they lived and warned them not to look back as the men departed. The two men thereupon ran into the woods and disappeared. Gazey and his companion then drove up Fitzwatertown Road until he saw some lighted houses, stopped at one and asked the occupants to call the police. He then carried the young woman into the house where they waited for an ambulance that took her to Abington Hospital.
The foregoing facts are not in dispute; the question is simply one of identification. Prior to the trial, the police showed Gazey, Michael Faywewicz and the young lady a photo file of possible suspects. The girl could not identify either of her assailants because she had avoided looking at their faces. However, Gazey and Faywewicz identified the pictures of appellant and another as the two men in question. Prior to the trial, appellant moved to suppress this evidence on the contention that his picture and that of his companion had been placed in the photo file on top of two other photographs in such a way that they fell forward slightly when opened for inspection. It was his contention that anyone looking at the file would realize that the police had superimposed these two photographs
[ 245 Pa. Super. Page 380]
in an earlier file and that, therefore, they were the suspects. The trial judge stated that he was far from satisfied that there was anything unduly suggestive about the photographic displays, but that he would give the appellant the benefit of the doubt and ordered the evidence based on them suppressed.
At the trial, appellant was unequivocally identified both by Steven Gazey and Michael Faywewicz as one of the two men in the rear of the Gazey car. Gazey testified that his identification rested on four periods of observation while the men were in the car. He said that he observed both men for a period of about twenty-five seconds as they entered the car and looked closely at appellant because he had initially believed that he was a person he knew. He further testified that for a period of approximately ten minutes while he was driving from Hatboro to Willow Grove he constantly looked into the rear view mirror in front of him and studied both men because of a growing feeling that something was amiss. He continued his scrutiny of the men for approximately five minutes between the robbery and the time he was ordered to flip up the mirror. When the ordeal was finally over and the men were leaving the car, he turned in his seat and looked them in the face because he wanted to be certain of identification, despite the threat of bodily harm if he did so. In summary, he testified on direct and cross-examination that he was absolutely sure that the appellant and his companion were the two men in his car.
This identification was corroborated by Michael Faywewicz who had been sitting under a street light in an area well illuminated when the Gazey car stopped at the traffic light on York Road in Hatboro. He was sitting only a few feet from the Gazey car when it pulled up to the stop light. He talked to Gazey, who was well known to him, and observed ...