No. 36 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal-Trial Division, at Nos. 1889, 1890, 1892, 1893, January Session, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, President Judge, concurs in the result. Spaeth, J., files a concurring opinion. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 44]
Appellant was convicted in a non-jury trial of robbery,*fn1 impersonating a public servant,*fn2 criminal conspiracy,*fn3 and simple assault.*fn4 The events giving rise to this appeal occurred on December 28, 1975, and are as follows.
On that date the victim, Thaddeus Kirkland, was stopped on the corner of 21st and Redner Streets in Philadelphia by appellant and his accomplice. They falsely identified themselves as police officers and ordered Mr. Kirkland to face
[ 265 Pa. Super. Page 45]
against an adjoining building. Appellant's accomplice frisked the victim, removed $35.00 from his pocket and handed the money to appellant. The two then forced the victim to accompany them to a side street; appellant held a half-gallon wine bottle over Mr. Kirkland's head to ensure compliance with their orders. As Mr. Kirkland was walking with his hands raised, appellant removed his wristwatch. These events were observed by employees of the telephone company who alerted the police. As the police approached, appellant fled, but was apprehended on December 31, 1975. During this incident, Mr. Kirkland suffered a heart attack and was hospitalized for two weeks.
On January 12, 1976, appellant was arraigned at a preliminary hearing before a municipal court judge. Before appellant entered the hearing, his counsel made a request that a lineup be conducted since the victim had not as yet identified appellant in a lineup or by photograph, nor had he given a description of the robbers to the police. Counsel stated that he wished to avoid a tainted identification by having appellant confront the victim in a one-on-one situation at the preliminary hearing. The judge denied the request, and Mr. Kirkland identified appellant at the hearing.
A jury trial was held from March 31 to April 6, 1976, at the conclusion of which appellant was convicted of all charges. He was sentenced to terms from five to fifteen years on the robbery charge, one to two years for impersonating a public officer, five to ten years on the criminal conspiracy charge, and one to two years on the simple assault charge. All sentences were to be served concurrently. After denial of post-trial motions, appellant brought the instant appeal, alleging that the proceedings below were defective in the following respects: (1) the judge at the preliminary hearing erred in denying his request for a lineup prior to the hearing; (2) the court erred in denying appellant's motion to suppress any subsequent in-court identification by the victim as tainted by the alleged suggestive confrontation at the preliminary hearing; and (3) the court erred in not granting appellant's motion for a mistrial based
[ 265 Pa. Super. Page 46]
upon appellant's late entry into the courtroom after trial was scheduled to begin, particularly since the judge had earlier admonished the jurors to be punctual regarding their court appearances. For the reasons stated herein, we find appellant's ...