Nos. 620 and 621 April Term, 1977, Nos. 591 & 592 April Term, 1977 Appeal from the Order of the Court of Common Pleas of Beaver County, Pennsylvania, Criminal Division, at Nos. 1000 and 1001 of 1976.
John Lee Brown, Jr., Assistant District Attorney, Beaver, for Commonwealth, appellant in Nos. 591 and 592 and appellee in Nos. 620 and 621.
Harry E. Knafelc, Assistant Public Defender, Beaver, for appellant in No. 620 and appellee in No. 591.
John P. Donhanich, Assistant Public Defender, Beaver, for appellant in No. 621 and appellee in No. 592.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 283 Pa. Super. Page 362]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Beaver County granting defendants-appellants motion for a demurrer.
The sole question is whether the Commonwealth presented sufficient evidence at trial so as to enable a finder of fact to decide whether defendants committed the robbery which was the subject matter of the charges on which they were tried.
On the evening of October 23, 1975, the Sun Drug Store in Beaver Falls was the scene of a robbery. As Theresa Alberti, a clerk in the store, was locking the front door a black male entered the store by pushing his way through the door, pushed her to the floor and attempted to open a cash register. None of the witnesses who testified at trial (Ms. Alberti and several store patrons) could see the man's face because he wore an orange ski cap. Failing to open the cash register, the man fled from the store. Outside the store, he was met by another man and both culprits fled along a path leading to the Mt. Washington section of White Township.
The police were promptly notified of the incident and detained the defendants approximately three blocks from the exit of the path into the Mt. Washington area. The defendants were then brought back to the scene of the crime and identified as the culprits, although some of the witnesses expressed the belief that the defendants had exchanged coats. Defendants were then arrested and brought to trial on February 24, 1977 after which the court below granted defendants' demurrer to the evidence presented by the Commonwealth. The court concluded that the identifications of the defendants at trial were insufficient to convict them of the charges (robbery and conspiracy). From that decision the Commonwealth appeals. The sole issue, therefore, is whether the identification testimony was sufficient to send the case to the jury.
[ 283 Pa. Super. Page 363]
At the trial, Ms. Alberti described the man who entered the store as "black" "slim," wearing a "short brown jacket" and a "tassel cap". She also testified that she observed a wallet or billfold with a chain around it in his back pocket and identified a chain in court as the one she saw that night. Upon cross-examination she admitted that she could not tell whether it was one of the defendants who was wearing the jacket.
Louise Blair, another store employee who was present when the incident occurred, also testified at trial. She could not see the face of the culprit who entered the store, but testified that he wore a "orangish colored jacket with blue, light and darker pants; and that he wore a ski mask over his face". She described the culprit as a "tall, thin black man". She saw the coat that same night on the defendant Gould when he was brought to the store by the police. Then the police brought in defendant Smith and had him wear the same coat. The witness testified that the orange coat fit Smith, the thinner man, and did not fit Gould, a stocky man. The ...