Appeal from Judgment and Sentence of the Court of Common Pleas of Philadelphia dated February 19, 1976, as of July Term, 1974, Nos. 421, 422 and 425. No. 1111 October Term, 1976.
Edwin P. Smith, 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. Van der Voort, J., dissents.
[ 246 Pa. Super. Page 401]
On June 14, 1974, appellant was arrested and charged with robbery, burglary, terroristic threats, possession of the instruments of crime, recklessly endangering another person, and carrying firearms without a license,*fn1 as the result of a robbery in a Philadelphia bar. Robert Gualtieri, the bartender, and Maria Roccia, the barmaid, testified that as they were closing the bar for the evening, the appellant entered the bar and demanded money at gunpoint, threatening to kill them if they did not comply. Gualtieri handed over a small box containing $2,500.00, and appellant fled from the bar. While the bartender called the police, Roccia ran from the bar announcing
[ 246 Pa. Super. Page 402]
the fact of the robbery, and Thomas Principato, who was outside the bar in the company of two friends, gave chase. Principato testified that he pursued appellant for three blocks, until he saw appellant enter a brown Cadillac and drive away. A short time later, a police officer who heard a radio bulletin pertaining to the robbery saw the appellant and a woman parked in a brown Cadillac less than three blocks from the bar, and stopped to question them. During this questioning, another police car arrived carrying Principato, who immediately identified appellant as the fleeing felon. The appellant was then transported to the bar in a police van, whereupon Gualtieri and Roccia attempted to identify him as the robber, but could not. Appellant was then taken to the police station and placed in a small observation room, where he was identified by Roccia when he spoke.*fn2
After appellant was arraigned and indicted a suppression hearing was held, and the suppression court found probable cause for appellant's arrest, suppressed any identification by Roccia and Principato at the police station, and denied the motion to suppress the identifications made by Roccia and Principato in court and at the preliminary hearing.*fn3
Following the appellant's third trial,*fn4 before Canuso, J., with a jury, he was found guilty of terroristic threats, possession of instrument of crime generally, recklessly endangering another person and robbery. Timely motions
[ 246 Pa. Super. Page 403]
in arrest of judgment and for new trial were filed and denied, and defendant raised six issues on direct appeal to this court.
The record discloses that at defendant's trial, Maria Roccia stated during cross examination that she positively identified appellant as the robber when he was returned to the bar in a paddy wagon.
"Q. When the police opened the doors [to the police van] you say the light was not good enough for you to see the man's face in the wagon?
"A. He was in the back of the wagon.
"Q. You couldn't see his face well enough to identify him?
"Q. Did the police then close the doors?
"Q. At that time or before the police closed the doors did you tell them it was the man?
"A. I said I was almost sure it was the man. I identified him. I did tell them he was the man that held me up.
"Q. While on the street outside the paddy wagon?
"Q. You are definitely certain you ...