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COMMONWEALTH PENNSYLVANIA v. JOHNNIE BOONE (05/08/81)

filed: May 8, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOHNNIE BOONE, APPELLANT



No. 1188 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 779, 781, 784 June Term, 1978.

COUNSEL

Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 287 Pa. Super. Page 4]

Appellant has raised numerous challenges to his convictions on charges of escape, conspiracy to escape, and robbery. Finding no merit in any of appellant's contentions, we affirm the judgment of sentence.

On May 29, 1978, seven inmates, including appellant, used hooks and ropes to climb through a skylight and over a wall and escape from Holmesburg Prison in Northeast Philadelphia. Later that evening appellant and his fellow escapees robbed three men of approximately $1,000 at a tire store several blocks from the prison. The seven then fled the scene in a van which belonged to one of the robbery victims. On the morning of May 31, 1978, police discovered appellant hiding in a house in South Philadelphia, thirteen to fourteen miles from the prison, and arrested him along with four of the other escapees also found in the house. Appellant was subsequently tried jointly with five of his fellow escapees and convicted by a jury of the charges set forth above.*fn1 Following denial of post-verdict motions and imposition of sentence, appellant took this appeal.

Appellant contends first that the evidence is insufficient to support his conviction of robbery because of deficiencies in the testimony of the only witness to identify him at trial. Specifically, appellant claims that the witness, David Scott, failed to identify him positively at trial and failed to identify him at all during a photo display conducted

[ 287 Pa. Super. Page 5]

    within hours after the robbery.*fn2 The record reveals that on direct examination Scott did identify appellant as one of the robbers. Subsequently, after extensive cross-examination, Scott stated that appellant "looked like" one of the men who had robbed him, but conceded that his identification was somewhat "fuzzy" and that his recollection of the incident was fresher nearer to the time of its occurrence. In Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973), our Supreme Court stated that "[p]roof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction . . . . The evidence of identification, however, needn't be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight." Id., 453 Pa. at 430, 309 A.2d at 566 (Citations omitted). Accord, Commonwealth v. Murray, 246 Pa. Super. 422, 429-30, 371 A.2d 910, 913 (1977) (evidence held sufficient despite witness' concession on cross-examination that he was not "one-hundred per cent sure" of his identification of defendant). Accordingly, any uncertainty in Scott's identification of appellant was a matter for the jury in passing on weight and credibility, and did not render the evidence insufficient to convict.*fn3 Similarly, the fact that Scott failed to identify appellant during the photo display bears only on the weight and credibility of his trial testimony and does not undermine the conviction. See Commonwealth v. Davis, 466 Pa. 102,

[ 287 Pa. Super. Page 6351]

A.2d 642 (1976); Commonwealth v. Tate, 229 Pa. Super. 202, 323 A.2d 188 (1974). Moreover, the lower court properly instructed the jury to receive Scott's identification testimony with caution since it had been weakened on cross-examination. See Commonwealth v. Mouzon, 456 Pa. 230, 233-34, 318 A.2d 703, 705 (1974); Commonwealth v. Kloiber, 378 Pa. 412, 424, 106 A.2d 820, 826-27, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Under these circumstances we find no merit in appellant's challenge to the sufficiency of the evidence of robbery.

Appellant contends next that several statements which the prosecutor made during his closing argument were so prejudicial as to necessitate the grant of a new trial. In the first of these statements the prosecutor referred to an identification of appellant which Scott had made at the preliminary hearing and which was not in evidence at trial. Appellant's objection to this statement was sustained, and the lower court carefully instructed the jury that the prosecutor's reference to the preliminary hearing testimony was not in evidence and was to be disregarded. Subsequently, the court denied appellant's request for a mistrial based on the statement. Appellant argues that the reference to Scott's preliminary ...


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