No. 3068 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division, at No. 0323-5 March Term, 1978.
Elias B. Landau, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 276 Pa. Super. Page 14]
The instant appeal arises from appellant's conviction of robbery, aggravated assault, and criminal conspiracy following a non-jury trial. Appellant's lone contention is that the only evidence directly implicating appellant in the crime, which was provided by his juvenile accomplice, Shawn Kelly, was patently incredible and could not justify a finding of guilty beyond a reasonable doubt. We disagree and will affirm.
Approximately at 5:00 p. m. on January 28, 1978, Simone Sigillito, an elderly gentleman, was entering his apartment building in Philadelphia when he was attacked by two young men. The pair of thugs punched and kicked the old man, tore his pants, stole his wallet, and fled. The crime was immediately reported to the police who arrested Shawn
[ 276 Pa. Super. Page 15]
Kelly in the vicinity. Kelly was alone when arrested, but Mr. Sigillito identified Kelly as one of the assailants when the police returned Kelly to the scene.
Kelly at first was taciturn concerning the robbery and assault, but the thought of his accomplice fully enjoying the proceeds of the crime with none of the punishment, and the prospect of being certified for trial as an adult, encouraged a "remorseful" attitude in Kelly.*fn1 When promised that he would not be certified for trial as an adult in return for his cooperation, Kelly confessed and identified appellant as his accomplice.
Both at the preliminary hearing and at trial Mr. Sigillito was not able to identify appellant as the other assailant, but Kelly's testimony identifying appellant as his partner in crime was strong, sure, and unwavering. The only aspect of his testimony which could be shaken was a collateral matter concerning when Kelly first implicated appellant. At the preliminary hearing Kelly had testified that the hearing itself was the first occasion he had to identify appellant as his accomplice. At trial he corrected this error, admitting that he had identified appellant prior to the preliminary hearing in a discussion with the police. Kelly explained the discrepancy in his testimony stating that the question had simply confused him at the preliminary hearing.*fn2
Relying especially on our decision in Commonwealth v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1973), appellant contends that a variety of factors fatally undermined Kelly's credibility and rendered the finding of guilt conjectural. Specifically, appellant contends the following ...