William J. Manfredi, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele Barthold, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts and Nix, JJ., concur in the result. Manderino, J., filed a dissenting opinion.
Ronald Grace was convicted by a jury of murder of the second degree and robbery. Concurrent judgments of sentence of life imprisonment and not less than ten
nor more than twenty years imprisonment were imposed. These appeals followed.*fn1
A timely written "motion in arrest of judgment or for a new trial" was filed in the trial court, but only "boiler-plate" challenges to the validity of the convictions were advanced in this motion. It did include a request for permission to file "additional reasons in support of this motion" after the transcription of the notes of testimony but "additional reasons" were never filed in the form of a supplemental motion. On appeal, several assignments of error are asserted which were not included in the post-verdict motion filed in the trial court and under Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) may be ruled waived. However, at the time of argument on the post-verdict motion appellant's counsel did file a "memorandum in support of motion for a new trial" which included all of the assignments of error now advanced and the trial court accepted and considered the merit of these assignments of error without objection. Under the circumstances, we will consider the issues preserved for our review. We do so because in written "memorandum" assured certainty in the record and assures us the issues were presented to the post-verdict motion court. But we again remind counsel that written post-verdict motions must be filed and these motions must include every assignment of error which counsel wishes to preserve for appellate review.
The first three assignments of error relate to the admission at trial of testimony identifying Grace as one of the guilty parties. The relevant facts are as follows:
On May 3, 1974, at approximately 12:45 p.m., three males committed a robbery in a grocery store at 218 West Indiana Avenue in Philadelphia, and fatally shot the proprietor, Hilario Montezuma Ramos. The three
then fled. An officer, Leslie Stewart, pursued two*fn2 of the felons and was fired upon by one of the two. All three felons escaped immediate apprehension, but about 15 minutes later Grace was apprehended while hiding in the basement of a factory in the immediate vicinity.
During direct-examination a Commonwealth witness, Roberta McCullough, testified that she lived at 219 West Indiana Avenue; that a short time before the robbery she was standing by a side door to her residence from where she could observe the grocery store; that she observed three men standing "for a few minutes" near the store; that she saw them then walk towards the grocery store; that she turned away from the doorway and then heard a sound similar to the backfire of an automobile; that, a couple of seconds later, she heard the same sound three or four more times; that she then opened the screen door and observed three men coming out of the store; that she saw Officer Stewart alight from an automobile and "hit the ground" when two more shots were fired; that the men she first observed near the store were the same men she saw come out of the store; that Grace, the appellant, was one of the three; that he was wearing a "sailor's" hat at the time; and, that she had seen Grace approximately a "dozen" to "two-dozen" times previously in a tavern in the immediate vicinity.
During cross-examination, she testified that while she recognized Grace at the time of the crimes from having seen him previously, she did not know his name; that she provided the police with a statement at the Police Administration Building a few hours after the incident; that she also discussed the event with a neighbor who informed her of Grace's name; that she described Grace to the police as five feet eleven one hundred and ...