No. 1640 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 1541-1542, October Session, 1976.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion, in which Jacobs, President Judge, joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 378]
This is an appeal from the judgment of sentence of the Criminal Division of the Court of Common Pleas of Philadelphia County by the appellant, Granfort Rodgers, following his conviction in a jury trial of the charges of robbery and simple assault. Timely filed post verdict motions were denied. Thereafter this appeal.
The facts are as follows: Appellant was arrested on August 12, 1976 and charged with robbery and related
[ 259 Pa. Super. Page 379]
offenses. At trial, the complainant, Abis Looser, testified that he was accosted by a man on Mt. Vernon Street in Philadelphia and following a short struggle, complainant was robbed of $8 in cash, cigarettes and his eye glasses. Complainant subsequently recovered his eye glasses. Complainant followed appellant to a vacant house on Twelfth and Green Streets where the police met the complainant who directed them to the house in which appellant had entered. Finding nobody in that house, the police were told by complainant that his assailant had entered another house. When the police emerged from the second house, they had appellant in custody. The complainant identified appellant as his assailant at that time.
At trial, both complainant and a second floor eye witness identified appellant as the assailant.
On February 9, 1977, the jury returned verdicts of guilty on both charges.
Appellant posits two trial errors: first, that the court failed to give appropriate cautionary, jury instructions concerning complainant's in-court identification of the appellant as mandated by Commonwealth v. Kloiber ;*fn1 and second, the court erred in refusing to grant appellant's motion for a mistrial following the district attorney's alleged improper and inflationary closing to the jury.
With appellant's contentions, we do not agree. Judgment of sentence affirmed.
The Kloiber court stated at page 424, 106 A.2d at page 826:
Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution -- indeed the cases say that "'his [positive] testimony as to identity may be treated as the statement of a fact'": [citations omitted]
[ 259 Pa. Super. Page 380]
On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.
The above standard for cautionary instructions has been reaffirmed in Commonwealth v. Wilkerson, 204 Pa. Super. 213, 203 A.2d 235 (1964) and Commonwealth v. ...