No. 481 January Term, 1975, Appeal from Judgment of Sentence of May 30, 1975, of the Court of Common Pleas, Criminal Division, of Delaware County, at No. 850 December Term, 1973
Frank J. Marcone, Media, for appellant.
John G. Siegle, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., took no part in the consideration or decision of this case. Packel, J., took no part in the decision of this case. Manderino, J., concurs in the result.
Appellant, Ronald E. Holland, was tried by a judge sitting with a jury and was convicted of voluntary manslaughter in connection with the shooting death of Michael Timchattin. Post-verdict motions were denied and appellant was sentenced to five to ten years in prison and a $250 fine. This appeal followed. The facts surrounding this homicide are as follows. Appellant and the decedent were both employees of Reynolds Metal Company. The decedent was appellant's foreman. The working relationship between appellant and the decedent was strained as a result of cross-complaints concerning labor grievances that they had filed against each other.
On September 18, 1973, appellant was in the Village Cafe West drinking. While in the bar, appellant complained about the decedent to a co-worker, Michael Mortimer. Appellant left the Village Cafe West and walked across the street to Sbandi's Bar, where the decedent had arrived approximately fifteen minutes earlier. Appellant entered the bar and confronted the decedent. A verbal exchange took place concerning the working disagreements that existed between the two. Appellant then left the bar. Within a few minutes the decedent also left Sbandi's. Within minutes, shots were heard and the decedent staggered back into the bar and collapsed.
Appellant first argues that the suppression court erred in not suppressing the identification testimony of Lloyd Bell, a Commonwealth witness. The basis for appellant's contention is that Bell's identification was tainted by an impermissible (and subsequently suppressed) uncounselled
physical lineup. The Commonwealth does not contest that the suppression court properly suppressed any testimony or evidence concerning Bell's identification of appellant at Chester Police Station; rather, the Commonwealth contends that the Bell identification had an independent basis. We agree that Bell's in-court identification was properly admitted into evidence.
In Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976), this court stated:
". . . [T]o determine if these identifications were independent of any possible improprieties, we should consider the factors set out by the United States Supreme Court:
'. . . the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup, of any person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.' United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149 (1967). See Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973)."
At the suppression hearing, Bell testified as follows:
"A. I had just finished bowling, and I stopped there to pick up my daughter, that was staying with my aunt.
"Q. You were in your car at the time?
"A. I had just gotten out of the car.
"Q. All right. When you got out of your car, would you please describe what you saw at that time.
"A. I was just about to lock the car when I heard a shot or two shots ring out. And it was so close that it startled me. And I just backed up against the car and waited, and finally two figures emerged from the alley beside the bar.
"Q. Now did both of those figures come nearer to you?
"Q. And how close did you get to them, or how close did they get to you?
"A. Well, the one person came across the back of the building and down a little, I guess about a two-foot wall there, and walked down along the side of the bar and then disappeared around the corner. The other person came up along two cars to another little paved section behind homes there and came right across the street within about three and a half, four foot of me where I was standing beside a tree at the car.
"Q. What were the lighting conditions right then and there near that tree?
"A. Fairly good. There was a street light right there at the end of that alley.
"Q. Do you recall how that person was dressed?
"Q. How was that person dressed?
"A. Blue denims, the top and bottom, white T-shirt. From the sound of it, it sounded like heavy shoes.
"Q. And you say the person got within three or ...