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COMMONWEALTH PENNSYLVANIA v. KEVIN B. KIRKMAN (03/09/79)

decided: March 9, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KEVIN B. KIRKMAN



No. 524 April Term, 1978, Appeal from the Order entered on December 19, 1977, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, granting the Motion in Arrest of Judgment at No. CC7705053A.

COUNSEL

Robert L. Eberhardt and Charles W. Johns, Assistant District Attorneys, Pittsburgh, for Commonwealth, appellant.

No appearance entered nor brief filed for appellee.

Price, Hester and Lipez, JJ.

Author: Hester

[ 264 Pa. Super. Page 171]

This is a Commonwealth appeal from an order granting appellee's motion in arrest of judgment after a non-jury trial which resulted in a verdict of guilty of two counts of robbery.

The procedural history and facts relevant to this appeal are as follows:

Two robberies took place on July 22, 1977 in McKeesport, Pennsylvania. The first occurred at approximately 11:00 P.M. as the victim, Daniel O'Brien, was walking along a main thoroughfare in McKeesport. He was accosted by a man who put a gun to his back and said, "This is a stick up. I will blow your brains out." (TT 17). The area was well illuminated and O'Brien took a few steps backward to allow more light on his assailant's face. In making his identification, he stated that his assailant was approximately five feet ten inches tall, between twenty and twenty-five years old and had a noticeable beard. Another man who assumed a passive role in the robbery was dressed in a similar fashion to the man with the gun, both wearing overalls. After taking the victim's wallet, they left the area. O'Brien identified the appellee as his assailant on three separate occasions. The first was on July 23, 1977 while appellee was in the cell block at the McKeesport Police Station at approximately 1:00 A.M. A week later, he identified him at the preliminary hearing, and finally in open court.

The second robbery occurred at approximately 11:45 P.M. as Frank Yednak, a McKeesport resident, left home for a walk. He noticed he was being followed by two "kids" who ran and caught up with him. One of them pulled a gun and ordered, "Take out your wallet" (TT 34). Yednak stated

[ 264 Pa. Super. Page 172]

    they were under a street light which provided good illumination. He described the assailant with the gun as approximately five feet ten inches tall, wearing denim trousers and jacket, with long, light-brown hair and a beard. The second man was approximately five feet four inches tall, dressed the same as the man with the gun, and had long hair and a mustache. After the victim handed the assailant with the gun five one dollar bills, the two men disappeared down a nearby alley. At trial, the victim identified appellee as the assailant who held the gun and received the money. He also indicated that appellee had a beard at the time of the robbery and described it as a "regular" beard. Photographs introduced by the Commonwealth showing appellee to be clean shaven were of no evidentiary value because they were taken after the preliminary hearing, rather than at the time of the arrest. The arresting officer testified, however, that appellee did have a beard at the time of his arrest on July 23, 1977.

Three witnesses testified on behalf of the appellee. There was no dispute that appellee had a beard at one time. However, his next door neighbor testified that appellee came over to borrow an iron around the sixth or seventh of July and she remarked, "Oh, you look so cute, Kevin, I like you better without the beard." (TT 82). She further testified that she had seen him on July 22, the date of the robberies, and that he was clean-shaven. She was sure of the date because that was the day she came home from vacation.

A second witness, Perry Muse, a fellow employee, also testified appellee's beard was shaved about two weeks before July 22, and that everybody who worked with appellee "made ...


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