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COMMONWEALTH PENNSYLVANIA v. JAMES CARTER (11/16/79)

filed: November 16, 1979.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES CARTER, APPELLANT



No. 876 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1399 and 1401, August Term, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.

Author: Price

[ 271 Pa. Super. Page 510]

Following a jury trial concluded on October 7, 1976, appellant was convicted of robbery*fn1 and conspiracy.*fn2 Post-trial motions were denied, and he was sentenced to consecutive terms of from ten to twenty years imprisonment on the robbery charge, and two and one-half to five years on the conspiracy charge. Appellant now alleges that the trial

[ 271 Pa. Super. Page 511]

    court erred in admitting certain identification testimony and in selectively reviewing the evidence for the jury. We disagree and consequently affirm the judgment of sentence.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the following facts were adduced at trial. At 8:50 on the evening of August 3, 1976, Philadelphia Highway Patrol Officer George Moriarty received a radio call to "investigate two males acting suspiciously on the corner of 22nd and Annin Streets." (N.T.S.H. 8). Together with his partner, Officer Burton, Officer Moriarty proceeded to the area where he observed appellant and another male running east on Annin Street towards the police cruiser. Appellant was carrying a brown paper bag from which what appeared to be a gun barrel protruded. Officer Moriarty exited his vehicle and ordered appellant to stop, at which time the latter dropped the brown bag and, after running a short distance, finally halted. He was then frisked, handcuffed, and placed in the rear seat of the police car.

Officer Moriarty was then informed by another patrolman that a neighborhood bar had just been robbed and that the police radio had described the suspect as wearing blue dungaree pants, blue shirt, sneakers, and carrying a shotgun. Because appellant was similarly clothed (with the inclusion of a blue knit watchcap), Officer Moriarty requested a police wagon which subsequently transported appellant to the "Most Complete Bar" at 22nd and Ellsworth Streets.

At the bar, Robert Sapp, an off duty Philadelphia patrolman who had been a patron at the time of the robbery, was just returning from a fruitless attempt to locate the criminals. As he neared the bar, he could observe appellant being escorted from the police wagon. Once inside the bar, Officer Sapp identified himself to the arresting officers, after which he and the patrons were asked if they recognized appellant. Officer Sapp and others indicated that facial identification was impossible because the robber's face was covered. Officer Sapp noted, however, that both the suspect's build and clothing were identical to that worn by the

[ 271 Pa. Super. Page 512]

    robber save for a blue knit cap, which the latter had pulled down over his features. At this point, one of the patrolmen returned to the car, retrieved appellant's cap, and placed it on his head. Officer Sapp then positively identified appellant as the robber. Officer Sapp also identified the brown bag and barrel, which were now being carried by Officer Moriarty, as the object carried ...


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