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COMMONWEALTH PENNSYLVANIA v. GLENN DWAYNE COUNCIL (09/22/80)

decided: September 22, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
GLENN DWAYNE COUNCIL, APPELLANT



No. 16, May Term, 1979, Appeal from the Order of the Superior Court at No. 220, March Term, 1977, affirming the judgments of sentence of the Court of Common Pleas of Franklin County on Criminal Action No. 471 of 1975

COUNSEL

Douglas W. Herman, Chambersburg, for appellant.

John R. Walker, Dist. Atty., John F. Nelson, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion.

Author: Kauffman

[ 491 Pa. Page 436]

OPINION OF THE COURT

After a non-jury trial in the Court of Common Pleas of Franklin County, appellant, Glenn D. Council, was convicted of two counts of robbery. The Superior Court unanimously affirmed appellant's judgments of sentence in a per curiam order. We granted allocatur and now affirm.

Appellant contends that the trial evidence does not support his convictions. We disagree. The record shows that on October 7, 1975, at approximately 5:00 p. m., a black male, wearing a dark jacket and a knit cap, his face partially covered with a pink and white towel, ran into Smith's Grocery Store in Fayetteville, Pennsylvania. He first requested toothache medicine from the owner, Mrs. Edna Smith, and then forced her to place the sixty-five dollars in her cash register, in denominations of one and five dollar bills, on the store counter. Mr. Marion Cubeta then entered the store and the robber drew a gun and ordered him to "freeze." After ripping out a candy case in an unsuccessful attempt to find more money, the robber patted Cubeta down, turned out his pockets, and ordered him to put all his money-some fifty cents-on the counter. The robber then scooped the money off the counter, warned Smith and Cubeta to remain silent, and fled.

In the early morning hours of October 8, 1975, after obtaining a search warrant for appellant's hotel room and car,*fn1 the police seized, inter alia, a dark jacket, a knit cap, a toy pistol, a green bag containing sixty-two dollars in denominations

[ 491 Pa. Page 437]

    of one and five dollar bills, and a pink and white towel.*fn2

At trial, although Smith could not identify appellant, she did identify the towel and hat seized from his car as those worn by the robber. Cubeta, who had identified appellant in a photo lineup conducted immediately after the robbery, testified that he was "positive" that it was appellant who had robbed him.*fn3 Cubeta also identified the towel, shirt, pants, and jacket seized during the search of appellant's room and car as those worn by appellant during the robbery. The Commonwealth called two additional witnesses at trial who testified that they had seen appellant's distinctive car at the crime scene immediately before and after the robbery.*fn4

Because Cubeta conceded at trial that he was unable to identify appellant positively during the preliminary hearing, appellant argues that Cubeta's "in-court" identification testimony should have been disregarded. According to appellant, the other evidence presented "is just as consistent with innocence as with guilt." (Appellant's brief at 25) We disagree.

It is essential to the fair administration of justice that appellate tribunals not sit as second fact-finders. Rather, on appeal the evidence must be viewed in the light most favorable to the verdict winner with all reasonable inferences flowing therefrom. Commonwealth v. Rose, 463 Pa. 264, 244 A.2d 824 (1975). When so viewed, the evidence presented below is undoubtedly sufficient to support appellant's convictions. The record shows that Cubeta had an adequate opportunity to observe appellant in good lighting conditions and that he identified his photograph immediately

[ 491 Pa. Page 438]

    after the robbery. Accordingly, the trial court did not abuse its discretion in admitting Cubeta's identification testimony, see Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976), cert. denied 429 U.S. 1044, 97 S.Ct. 746, 50 L.Ed.2d 757 (1977), and we will not engage in re-evaluating his credibility. Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1978); Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978) (plurality).

Appellant also contends that Cubeta's in-court identification was the result of a suggestive confrontation at his preliminary hearing. Since this claim was not advanced either at the suppression hearing or at trial, it has been waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 ...


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