No. 389 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Div., Criminal Sec. of Phila. County at Nos. 1003 and 1005 February Term, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Robert B. 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. Hester, J., files a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 266 Pa. Super. Page 19]
The appeal in this case arises from a judgment of sentence after the appellant's conviction and sentencing on charges of robbery and possession of instruments of crime. Several issues are raised on appeal by the appellant.
[ 266 Pa. Super. Page 20]
The facts of the crimes charged are quite simple. On January 14, 1976, an intruder burst into the home of Edith Smith. The intruder, after forcing his way through the front door, and into the living room of the home pointed a pistol at Mrs. Smith, who was in that room. He unplugged and picked up a portable television set in the room and immediately left the home. This incident was viewed by another occupant of the home, Ms. Katherine Gorman, who was a tenant of Mrs. Smith, and who was looking into the room when the intruder entered, grabbed the television, and then departed with the television.
Appellant raises a plethora of issues with regard to pre-trial and trial identification procedures. All of these issues may be dealt with expeditiously.
First, appellant challenges the identification which Mrs. Smith offered at trial. This case was tried by a judge, without a jury, and the first witness called was Mrs. Smith. She was asked what happened during the January 13, 1976 incident at her home, and, inter alia, in response, she said, "and I was no more on my feet than Frank Alston came in with a gun." The defense immediately moved for a mistrial. It was contended that in pre-trial motions to suppress identification testimony, the fact that Mrs. Smith would testify on identification had not been disclosed to the defense. Moreover, defense counsel claimed he had been given assurances by the prosecutor that Mrs. Smith would not be testifying as to identification. No detailed review of this issue is merited, because the lower court declared, during argument on post trial motions, that it had not accorded any weight whatsoever to the identification testimony offered by Mrs. Smith or relied upon it in assessing guilt. In view of the fact that this identification testimony was not considered by the lower court in its determination of guilt, we find any arguable error to have been harmless, and reject this first claim of error.
Next, appellant argues that his pre-trial motions to suppress identifications by Ms. Gorman should have been granted. The record showed that Ms. Gorman identified the
[ 266 Pa. Super. Page 21]
appellant at a pre-trial photographic display and at a later line-up. As to the photographic display, appellant argues that the Commonwealth failed to produce the photographic layout at the suppression hearing (see Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974)), and otherwise failed to carry its burden of showing that pre-trial identification procedure to have been free of undue suggestiveness (appellant cites Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972)). With respect to the lineup, appellant contends that the Commonwealth had not established that appellant had made a knowing and intelligent waiver of counsel at the lineup, citing Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), ...