No. 1525 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 917 and 919, July Term, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Robert W. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 112]
Appellant, Joseph Steffy, appeals from a conviction of burglary and criminal conspiracy. He was tried before a judge after waiving his right to a trial by jury. A sentence
[ 264 Pa. Super. Page 113]
of six months to five years was imposed on each count, to be served concurrently. In this appeal the appellant questions the constitutionality of his identification by a witness at the preliminary hearing and the subsequent admission of such testimony into evidence at the trial.
On June 7, 1976, at approximately 11:30 A.M., the appellant and his girlfriend went to the home of Mr. and Mrs. Yeager to take Mrs. Yeager to the dentist, as had been previously arranged.*fn1 Mrs. Yeager admitted the two people into her home and invited them into the kitchen while she went upstairs to finish dressing. At about 12:30 P.M., Mrs. Yeager left with appellant and his girlfriend, along with appellant's young daughter and the Yeagers' three year old son. As they were leaving, Mrs. Yeager discovered that her keys to the house were missing, but she nevertheless locked the door as the group left the house. Mr. Yeager was working a 2:00 P.M. to 10:00 P.M. shift that day and thus he was not at home. It was arranged between the parties that while Mrs. Yeager was at the dentist, appellant would care for her son and would return to pick her up. After her appointment, Mrs. Yeager waited until about 4:30 P.M. and when appellant did not return, she went to the home of her sister-in-law. Shortly after her arrival, appellant entered with the Yeager boy and explained that he had had car trouble. Later that night when Mr. Yeager entered his home, he discovered that their television and stereo sets were missing, several drawers were ransacked, and a screen in a kitchen window was missing. There were, however, no visible signs of a forced entry. Mr. Yeager went to his brother's home suspecting his family might be there and upon seeing appellant, accused him of "robbing" his home, based on information Mr. Yeager received from his neighbors.
[ 264 Pa. Super. Page 114]
This appeal focuses on the identification and testimony of a neighbor of the Yeagers. Both at the preliminary hearing and at trial, the witness testified that she saw appellant on four different occasions entering or leaving the Yeager home on the day in question. She first saw him at about 11:30 A.M. in the company of a woman when they were admitted to the Yeager home by Mrs. Yeager. About 10-15 minutes later, the witness observed appellant leave and then, a few minutes later, she saw him re-enter the Yeager home. Later that day, at approximately 3:30 P.M., the witness saw appellant and a female companion enter the Yeager home, using a key. She did not see appellant again, until identifying him at the preliminary hearing as the man she saw on the day in question. This is the evidence directly linking appellant to the crime. Another neighbor testified that between 3:30 and 4:00 P.M., she saw a girl carrying a large covered bundle out of the Yeager home and place it next to a greenish-blue car with a black top. Other witnesses described the car appellant was driving that day as being green or blue with a black vinyl top. Counsel for appellant moved to suppress the neighbor's testimony on the grounds that the identification of appellant was made under "unduly suggestive" circumstances. The motion to suppress was denied and the case proceeded to trial.
On this appeal, appellant again contends that the circumstances surrounding the identification were overly suggestive and in violation of appellant's 14th Amendment right to due process and, second, that the identification was initially made prior to counsel being appointed, resulting in a denial of appellant's Sixth Amendment right to counsel. Further, appellant submits that the identification of appellant at trial was tainted by the prior unconstitutional identification.
Because appellant failed to preserve the issue of the lack of counsel stemming from the initial defendant-witness confrontation, we do not reach the merits of this question. Under Rule 323, Pa.R.Crim.P., 19 P.S. Appendix, a timely motion to suppress must state in detail both the ...