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COMMONWEALTH PENNSYLVANIA v. ROBERT LAVELLE (05/02/80)

filed: May 2, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT LAVELLE, APPELLANT



No. 213 October Term, 1979, Appeal from judgment of sentence imposed January 9, 1979, of the Court of Common Pleas, Criminal Division, of Luzerne County, Pennsylvania, Nos. 1154, 1154-A, 1154-B, 1617, 1650, 1913, of 1977.

COUNSEL

Joseph Sklarosky, Assistant Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Cavanaugh

[ 277 Pa. Super. Page 521]

Robert Lavelle, the defendant, appeals from judgments of sentence imposed as a result of two jury trials. In one trial, the defendant was convicted of burglary, theft, and receiving stolen property and was sentenced to three to six years' imprisonment.*fn1 In the other trial, he was convicted of two counts of forgery and two counts of attempt to commit theft. He was sentenced three to six years' imprisonment on each forgery count and one to two years' on each attempt to commit theft count. All the above sentences imposed were to run concurrently.

Defendant argues that the in-court identification of him by the Commonwealth's witnesses should not have been admitted into evidence and that the Commonwealth's witnesses should have been sequestered. The defendant's unopposed motion to sequester was granted in his trial for burglary, theft, and receiving stolen property. Therefore, the defendant apparently raises this issue only as to the forgery and attempt convictions. The issue of identification was not raised in post-verdict motions after the trial for burglary, theft, and receiving stolen property.*fn2 Therefore, it has not been preserved for appellate review. Commonwealth v. Blair, 460 Pa. 31, 33 n.1, 331 A.2d 213, 214 n.1 (1975). We, therefore, affirm the judgment of sentence imposed for those convictions. Nevertheless, both these issues were raised in post-verdict motions after the trial for forgery and attempt and so have been preserved for appellate review as to those convictions. We find the arguments have merit and therefore reverse the judgment of sentence imposed for the two forgery and two attempt convictions.

[ 277 Pa. Super. Page 522]

On several days in June and July in 1977, a person who identified himself as Robert Mack visited several branches of the Susquehanna Savings Association. On various occasions he opened a savings account, deposited a check payable to him in the amount of $25,000.00, and attempted to withdraw $10,000.00, $600.00, and $800.00. At trial, the five tellers to whom Robert Mack had spoken on his visits to the bank identified the defendant as Robert Mack. These same witnesses testified either on cross-examination or in the defendant's case-in-chief that they were shown photographs taken by the bank's camera of the person who purported to be Robert Mack. These photographs were shown to the witnesses either at the district attorney's office or in the courtroom on the day of trial before the witnesses testified. One witness testified that prior to testifying she was told by a policeman that she was being shown a picture of the defendant, to observe whether his present appearance was different, and to be sure she could identify him. At the time the perpetrator of the crimes had visited the bank, he had long hair and no mustache. At the time of the trial, however, the defendant had short hair and a mustache and at trial the prosecutor admitted there was a "marked difference" between the bank photographs and the defendant's appearance at trial. (N.T. 41).

The first issue we consider is whether identification of the defendant by the tellers should have been admitted into evidence.*fn3

After a suggestive pre-trial identification, a witness will not be permitted to make an in-court identification unless the Commonwealth establishes by clear and convincing evidence that the in-court identification has an independent origin in the witness' observations at the time of the

[ 277 Pa. Super. Page 523]

    crime and was not induced by events occurring between the time of the crime and the in-court identification. Commonwealth v. Rogers, 472 Pa. 435, 445-446, 372 A.2d 771, 776 (1977); Commonwealth v. Davis, 264 Pa. Super. 505, 509, 400 A.2d 199, 201 (1979). In the instant case showing certain Commonwealth witnesses pictures of the perpetrator of the crime a short time before they testified was obviously a suggestive identification. Thus, the burden was on the Commonwealth to show by clear ...


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