No. 1998 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, imposed on Indictments Nos. 1537, 1539, 1540 and 1541 September Session, 1975.
David Zwanetz, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result.
[ 249 Pa. Super. Page 408]
Appellant raises two assignments of error on this appeal from his conviction of robbery,*fn1 two counts of criminal conspiracy*fn2 and carrying a firearm on a public street.*fn3 Appellant was sentenced to 6-15 years on the robbery count, 1 to 2 years for carrying a firearm on a public street to run
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concurrent with the robbery sentence, and 5-10 years on each conspiracy count, each sentence to also run concurrently with the robbery sentence. For the reasons hereinafter set forth, we vacate the judgment of sentence on one of the conspiracy counts.
It appears from the record that early on the evening of July 27, 1975, Claude Taylor, 17, an attendant at an Arco gas station in Philadelphia, was robbed at gunpoint by two men. On August 13, 1975, at approximately 8:00 p. m., Taylor again saw what he thought to be the same two men who had previously robbed him as they were walking past the gas station. After the two men had crossed the street, going away from the gas station, they turned and looked toward the gas station in the direction of Taylor, who was then talking to his girlfriend on the telephone. Taylor then asked his girlfriend to call the police since he was afraid he might be robbed again. Approximately twenty minutes later, having first obtained a description of the two men from Taylor, the police apprehended the appellant and a companion a short distance from the gas station. The appellant was found with a gun. The two suspects were handcuffed and taken back to the gas station, where they were identified by Taylor as the men who had robbed him.
Appellant first argues that the on-the-scene identification that followed his arrest was impermissibly suggestive and therefore should have been excluded from evidence at trial. The details of the challenged identification indicate that the appellant and his companion were brought back to the gas station in a paddy-wagon, and were standing handcuffed in front of the wagon, next to a uniformed police officer. It is upon these facts that the appellant would have us rule that this on-the-scene identification was impermissibly suggestive. We refuse to so hold. The standard for on-the-scene identifications in our Commonwealth was recently stated in Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974):
"Evidence of identification should not be received at trial if the circumstances of the pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable
[ 249 Pa. Super. Page 410]
likelihood of misidentification (citations omitted). However absent some special elements of unfairness, we do not believe that prompt on-the-scene ...