No. 1256 October Term, 1978, Appeal from Final Judgment and Sentence of the Court of Common Pleas of Columbia County, at No. 50 of 1978 Term.
John A. Mihalik, Assistant Public Defender, Bloomsburg, for appellant.
Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellee.
Cercone, Hester and Hoffman, JJ.
[ 265 Pa. Super. Page 471]
This is an appeal from an adjudication of delinquency based upon a finding that appellant was guilty of robbery. Appellant now contends that the Commonwealth failed to prove his identity beyond a reasonable doubt.*fn1 For the reasons which follow, we disagree and therefore affirm the adjudication of delinquency.
John Shearer, the victim, testified that he was in the process of closing up his grocery store around 6:30 p. m. on January 23, 1978 when a man wearing a ski mask over his face and brandishing a knife and blackjack came into his store and demanded money. The man held his knife under Shearer's chin and beat him around the head with his blackjack until Shearer passed out. When Shearer regained consciousness, he grabbed a butcher knife from below the counter and chased the robber out. He then discovered that money had been taken from his cash register. When the police arrived in response to his call, Shearer gave them a description of his assailant's knife and blackjack, the man's brown sweater or sweat shirt, and his ski mask, which he described as beige with a red stripe and one large eye hole.
Police officer Albert Wagner testified that on January 24, 1978, he executed a search warrant at the home of Sharon Cox, appellant's mother, but found only a hunting knife which matched Shearer's description. On February 28, 1978, Officer Wagner returned to the Cox home where Mrs. Cox gave him a brown sweater and a dark brown ski mask. Wagner took these two items to Shearer, who said that they
[ 265 Pa. Super. Page 472]
looked similar to, and possibly could be, the items worn by his assailant.
Mrs. Cox testified that appellant owned the brown sweater and her other son owned the knife and ski mask. Two days after the police had searched the house, she found the sweater and a ski jacket (which she remembered appellant was wearing on the 23rd) stuffed under a booth in the kitchen. The next day while cleaning she found the ski mask in her bedroom closet.
Michelle Cox, appellant's ten-year old sister, testified that on the 23d, appellant answered a phone call at home a little after 7:00 p. m., then left to walk the dog, returning about 7:20 p. m. He asked Michelle where the ski mask was because he was going sleigh riding. She gave him the mask but he threw it in his mother's bedroom closet. He left the house about 7:30 p. m. to visit a friend; Michelle could not remember whether appellant took the mask with him when he left.
At trial, John Shearer could not positively identify the three items secured from the Cox house as those used by his assailant. He did say that each item was similar in type to the items used by the robber. He noted the similar blade length of the knife. The ski mask introduced at trial was also of the single eye-hole variety but it was a solid dark brown in color, not beige with a red stripe as originally described by Shearer. Shearer initially identified the brown sweater as "100% correct" in likeness. Michell Cox made a positive ...