No. 620 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Division, Criminal Sect., Imposed on Bill of Indictment No. 1589, November Term, 1975.
Holly Maguigan, Philadelphia, for appellant.
Charles Klein, Assistant District Attorney, Philadelphia, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Price and Van der Voort, JJ., dissent.
[ 251 Pa. Super. Page 279]
Appellant was held for trial on five bills of indictment. Two of the bills were for robbery, two for weapons offenses, and one for conspiracy. The Commonwealth did not move for trial on the two weapons bills, and eventually these were nol prossed. A jury found appellant not guilty on the two robbery bills, and guilty on the conspiracy bill. Appellant's post-trial motions were denied, and he was sentenced to 18 months to 3 years in prison. On this appeal he raises several issues, but we find it necessary to consider only one.
At the trial the only issue of substance was identification. On October 14, 1975, at about 8:00 p.m., a man burst through the door of Dave's Tavern in Philadelphia, brandished a gun, and ordered everyone to "hit the floor." The proprietor of the bar identified this man as appellant. He saw the man's face for "a matter of seconds." (N.T. at 76). The man with the gun and another man took money from the cash register and from the occupants of the tavern, and left. An off-duty police officer happened to be outside the tavern. He saw two men with guns run out and get into a car. The officer identified appellant as one of the two men. He saw the man he identified as appellant for no more than fifteen seconds, during most of which time he saw only the man's back; he saw the man's face for "I would say three seconds." (N.T. at 13). The officer was able to get the license number of the car the two men got into, and before the car drove away, he got a full-face view of the driver, whom he later identified as one Gary Moore. The officer was not able to see well enough to be sure how many men were in the car, but there may have been a fourth man. (N.T. at 15)
[ 251 Pa. Super. Page 280]
The bartender testified, but he could not identify the robbers. (N.T. 107) There was also testimony regarding recovery of guns from a car identified as belonging to Gary Moore.
In addition, a detective, Robert Aiken, testified; it is his testimony that concerns us. The testimony was as follows:
By [LEONARD ROSS] the Assistant District Attorney:
Q. What, if anything was the first thing you did once you received the assignment in [the ...