Nos. 486 & 498 January Term, 1976, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 653, 654, 655, 662, 664, 679 and 680 November Term, 1974.
Louis Lipschitz, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Stephen Seeling, Asst. Dist. Attys., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., files a dissenting opinion.
Appellant, Robert Mims, was convicted by a jury of murder of the first degree, arson, two counts of aggravated robbery, three counts of aggravated assault and battery, and conspiracy. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction, with a concurrent five to ten year sentence for the arson conviction. Judgments of sentence were suspended on all other convictions.
Appellant's convictions resulted from a January 4, 1971, robbery of Dubrow's Furniture Store at 419 South Street in Philadelphia. During the incident, appellant and his seven cohorts shot and killed one employee, shot and wounded another, doused yet a third with gasoline and set him on fire. All employees were stripped of their personal belongings.
Appellant raises numerous allegations of error. As we find that appellant has been denied the effective assistance of counsel, we need not reach his remaining allegations of error.*fn1
Appellant alleges that his trial counsel was ineffective for failing to object to an unduly suggestive in-court identification procedure. The facts are as follows.
At the time of the criminal episode, Louis Gruby was employed at Dubrow's as a "greeter." Gruby would ask prospective customers what they were looking for and then direct them to the proper area and salesmen. Gruby and another employee, Audrey Dimeo, were the only employees able to identify any of the participants in the crime. In fact, three days after the robbery, Gruby aided a police artist in making a composite sketch. Appellant was nonetheless able to elude capture until September 20, 1974.
At trial, appellant was placed along with seven other men with similar characteristics in the front row of seats in the
courtroom rather than at the defense table. Mr. Gruby testified that during the incident, he had an ample opportunity to see appellant. He further testified he had seventeen years of army intelligence training involving the observation and description of persons. Gruby stated that he was "absolutely" certain of his identification. However, when asked to identify appellant, Gruby identified another individual as the person participating in the robbery. At the time of the identification, no one informed Gruby that the man he identified was not appellant.
Following a very brief cross-examination by defense counsel, the district attorney showed Gruby the composite sketch which was made three days after the criminal ...