Appeal from the Judgment of Sentence of The Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 836/839, June Sessions, 1974. No. 1067 October Term, 1976.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 246 Pa. Super. Page 481]
Appellant contends that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, barred his retrial. We disagree and, therefore, affirm the convictions on the indictments charging robbery,*fn1 assault,*fn2 and conspiracy.*fn3
Appellant also contends that the evidence was insufficient to convict him of possession of instruments of crime.*fn4 We agree and, therefore, arrest judgment of sentence on this indictment. Finally, we remand for resentencing.
On May 25, 1974, at 8:30 p. m., the complaining witness left his store at Broad Street and Ridge Avenue, Philadelphia, to join a friend for dinner. After dinner, while the complainant was driving home, his 1964 Ford
[ 246 Pa. Super. Page 482]
truck broke down at 13th and Spring Garden Streets. While the complainant attempted to restart his truck, four men drove up in a red sedan and offered assistance. After pushing the truck about two blocks, the men emerged from the car and attacked the complainant. Appellant wrapped a rope around the victim's neck and beat him with a hammer while the other men assaulted him with their fists, a knife, and a screwdriver. After one of the four took the victim's wallet containing 400 dollars, the men fled.
Later that night, the Philadelphia police apprehended appellant and two companions based upon the victim's descriptions of the car and the robbers. At police headquarters, the victim identified appellant as the driver of the red sedan. The police secured a warrant for a search of the car and the seizure of appellant's clothing.
On June 13, 1974, a grand jury indicted appellant on charges of robbery, possession of an instrument of crime, aggravated assault, and conspiracy. Appellant filed motions to suppress all identification testimony, appellant's statements, and certain clothing seized pursuant to the warrant. On December 2, 1974, after a hearing, the lower court suppressed the out-of-court identification, appellant's statements, and the physical evidence because the Commonwealth stipulated that the identification procedures used by the police were suggestive. On January 10, 1975, the court ruled that an in-court identification by the victim would be allowed.
On June 26, 1975, appellant's trial commenced. After the victim and the arresting officer testified, the Commonwealth called the detective who had taken appellant's statements. The Assistant District Attorney began questioning the detective about the suppressed statements. Appellant ...