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decided: April 28, 1977.



Ronald J. Brockington, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., and Pomeroy, J., concur in the result. Nix, J., filed a concurring and dissenting opinion. Manderino, J., filed a dissenting opinion. Jones, Former C. J., did not participate in the decision of this case.

Author: Roberts

[ 472 Pa. Page 441]


On February 9, 1973, appellant James Rodgers, also known as James Henderson, was arrested for the 1969 murder of Frank Geter. He was charged with murder, aggravated robbery and burglary. After a hearing on appellant's motion to suppress evidence,*fn1 appellant was

[ 472 Pa. Page 442]

    tried before a jury and convicted of murder of the first degree, aggravated robbery and burglary. His post-trial motions for a new trial and in arrest of judgment were denied. He was sentenced to concurrent sentences of life imprisonment on the murder charge, and five to twenty years imprisonment on the robbery charge and three to ten years on the burglary charge. In this appeal,*fn2 appellant raises numerous grounds for reversal of his conviction. We find no merit in appellant's contentions and affirm the judgments of sentence.

I -- Sufficiency of the Evidence

Appellant contends that the evidence was not sufficient to prove him guilty beyond a reasonable doubt.

In passing upon the sufficiency of the evidence, we consider the evidence in the light most favorable to the Commonwealth. E. g., Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976); Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573, cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975). The test of sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the fact-finder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. E. g., Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Johnson, 458 Pa. 23, 326 A.2d 315 (1974).

Viewed in the light most favorable to the Commonwealth, the record reveals: During the afternoon of

[ 472 Pa. Page 443]

May 28, 1969, Josephine Weems encountered appellant and Otis Ferguson. That evening, she again met appellant and Ferguson while en route to the home of Frank Geter. Weems was looking for her friend Daisy Pough and thought she might be at Geter's house. Appellant and Ferguson accompanied Weems and waited at the street corner near Geter's home. Weems entered Geter's house, learned that Pough was not there and left a message for her. She departed and again encountered appellant and Ferguson. One of the men asked her if Geter had any money at home. During the ensuing conversation, the men discussed robbing Geter. After ten or fifteen minutes, Weems left.

Later that night, Weems was again in the neighborhood where Geter lived and heard a scraping noise. She observed a person at Geter's window. When the person approached her she recognized him as appellant. Weems and appellant walked to the corner where they awakened Ferguson, who was sleeping on the step of a building. Appellant and Ferguson discussed a plan to enter Geter's house. They instructed Weems to act as a lookout.

Appellant entered Geter's house through the front window and opened the front door for Ferguson. Weems heard Geter shout, "Get out of my house." Later, Ferguson and appellant left the house and rejoined Weems. Ferguson was carrying a basket filled with beer and a large blood-stained knife. One of the two men had a jar of pennies. The three walked down the street and stopped near a doorstep where appellant counted 103 pennies and gave them to Weems. The three then separated.

The next day Geter's body was discovered in his apartment. He had been stabbed eight times. The conditions in the house indicated that it had been ransacked. Weems was arrested shortly thereafter and gave a statement to the police implicating appellant in the crime. A

[ 472 Pa. Page 444]

    warrant issued for his arrest, but he was not apprehended until February 9, 1973.

We conclude there was sufficient evidence for the jury to find appellant guilty of all charges.*fn3

II -- The Motion to Suppress

A. The In-Court Identification

At the suppression hearing, appellant moved to suppress any in-court identification of appellant by Josephine Weems. The suppression court denied his motion and at appellant's trial Weems identified him as a participant in the Geter robbery-murder. Appellant asserts that the in-court identification should have been suppressed because it was tainted by a prior illegal identification. We do not agree.

On the night Weems was arrested, she identified a photograph of appellant from a group of photographs shown to her by the police. Appellant does not contend that this photographic display was suggestive. Weems later testified at appellant's preliminary hearing on February 28, 1973, more than three years after the crime. She was unable to identify appellant at that time:

"[The prosecutor]: Q. Do you know the defendant in this case, James Rogers?

[Weems]: A. No, I don't know James Rogers.

Q. Do you know the man that is sitting here next to Mr. Gottlieb [defense counsel]? Stand up if you have to see him.

[ 472 Pa. Page 445]

A. I can't see him good from over here because I wear glasses.

His face don't look familiar."

In the interim between the preliminary hearing and the suppression hearing, Weems told the prosecutor that she was not sure whether she could identify appellant in court. On the day before the suppression hearing, Weems was shown two photographs in the prosecutor's office. She recognized them as copies of the same photograph that she had seen at the police station on the night of her arrest in 1969. She then felt better about her chances of identifying appellant in court.

Weems positively identified appellant at the suppression hearing the next day. She explained that she was unable to identify appellant at the preliminary hearing because she has poor eyesight and was not wearing her glasses.*fn4 She stated that he looked different at the preliminary hearing than she remembered him, but that she now recognized him. Weems further testified that she knew appellant for about five years before the night of the crime, although she had seen him only once or twice.

The trial court ruled the out-of-court identification in the prosecutor's office improper and suppressed that identification. The court found, however, that Weems' ability to identify appellant was not tainted by the improper out-of-court identification. At trial, Weems again positively identified appellant as a participant in the robbery-murder.

Following a suggestive pre-trial identification procedure, a witness will not be permitted to make an

[ 472 Pa. Page 446]

    in-court identification unless the prosecution establishes by clear and convincing evidence that the in-court identification has an independent origin in the witness' observations at the time of the crime and was not induced by events occurring between the time of the crime and the in-court identification. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976) (plurality opinion).

Here, there was clear and convincing evidence that Weems' in-court identification was independent of the improper identification in the prosecutor's office. It is significant that the identification was made by a participant in the crime. On the day of the crime, Weems observed and conversed with appellant on several occasions; she had excellent opportunities to form a mental image of his appearance. Moreover, she testified that she knew him for five years before the crime, although their contact was infrequent. At the suppression hearing, Weems gave a satisfactory explanation for her inability to identify appellant at the preliminary hearing and the notes from the preliminary hearing corroborate her explanation. The record also indicates that Weems' fear that she would not be able to identify appellant may well have stemmed from nervousness about appearing in court rather than a faulty memory. Finally, she unequivocally stated that she remembered appellant from the night of the crime, not from the photograph she saw at the station house and the prosecutor's office.

"[The Court]: Q. [A]re you saying that . . . you remember him solely from the fact that he was with you that night or are you saying that this is the man because of you seeing the photograph of him five years ago or yesterday?

[ 472 Pa. Page 447]

[Weems]: A. I remember him from that night, from the incident, because he looks like hisself now, but like before, like I said, he didn't look like him. For one thing, I couldn't see him.

Q. At the [preliminary] hearing?

A. Yes.

Q. Well, aside from that, I want to know from you today, in saying this was the man that was with you and Otis on May the 29 --

A. Yes.

Q. -- are you saying that because you recognized him as being with you that night or are you saying that because you recognized him as the person who was in the ...

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