Nos. 485, 488 January Term, 1975, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, Indictment Nos. 647, 649, 650, 652, 653, 654, 657, December Sessions, 1971
Randolph W. von Till, Jr., Villanova, for appellant.
Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Manderino, J., filed a dissenting opinion.
As a result of a forcible intrusion into the homes of Mr. and Mrs. Gerald Shoemaker and Mr. and Mrs. Mollo, both residences situated in Delaware County, appellant was subsequently indicted,*fn1 tried and convicted by a jury for various charges, including murder of the first degree, burglary, robbery, larceny, assault and battery, and conspiracy. After
disposition of post trial motions a sentence of life imprisonment was imposed under the murder indictment. Following a Post Conviction Hearing, appellant was given the opportunity to file this direct appeal nunc pro tunc.*fn2
A capsulized summary of the events which lead to these convictions reveals that during the early morning hours of July 16, 1971, three men purporting to be F.B.I. agents knocked at the door of the Shoemaker residence. As Mr. Shoemaker answered the door, the three men rushed into the house. After some struggle and argument, the three men bound and gagged Mr. and Mrs. Shoemaker and tied them upside down in the cellar over a pipe. The men were in the house for approximately one half hour to forty-five minutes and stole certain property. The three men then went next door to the Mollo residence. Mrs. Mollo came to answer the door, but after turning on a porch light and looking at the men through a window, she became frightened and called for her husband. Mr. Mollo came up from the basement at which time the men broke the front door glass and fired a shot at Mr. Mollo, fatally wounding him. The men then bound the Mollo children, ransacked the house and departed. Appellant was later arrested and identified by Mr. and Mrs. Shoemaker and Mrs. Mollo as the leader of the group that had perpetrated these crimes.*fn3
Photographic identifications were made by the surviving victims which were suppressed by the court "out of an abundance of caution." It is now claimed that the in-court identifications should not have been permitted. A review of the record makes it eminently clear that Mr. and Mrs. Shoemaker and Mrs. Mollo had ample opportunity during the incidents to have made an independent identification.
It is well established in this jurisdiction that in determining whether or not testimony of the witness identifying an accused is admissible, the applicable test is whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by the exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). See also Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Burton, 452 Pa. 521, 307 A.2d 277 (1973); Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973); Commonwealth v. Williams, 440 Pa. 400, 270 A.2d 226 (1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970). ...