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filed: June 26, 1981.


No. 136 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County at Nos. 223 and 227 Criminal 1979.


Jesse E. Shearin, Jr., Greenville, for appellant.

David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.

Author: Spaeth

[ 288 Pa. Super. Page 398]

This is an appeal from judgments of sentence for burglary*fn1 and theft by receiving stolen goods.*fn2 Appellant's principal argument is that the evidence of his identification was insufficient to support a finding of guilt beyond a reasonable doubt. We have concluded that we agree with this argument. We shall therefore reverse.*fn3

[ 288 Pa. Super. Page 399]

In considering the sufficiency of the evidence of appellant's identification, we regard the evidence and all inferences arising from it in the light most favorable to the Commonwealth. Commonwealth v. Lewis, 276 Pa. Super. 451, 419 A.2d 544 (1980); Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979). We shall therefore ignore appellant's own testimony and that of his alibi witness.

At approximately 10:30 p. m. on May 1, 1979, Barbara Carnino was at work at the restaurant and tavern she owns in Farrell, Pennsylvania, when Herman Smith informed her that someone was in her apartment on the second floor over the restaurant. Carnino asked Phillip Craig, who was playing on a pinball machine, to accompany her upstairs to investigate. On the way upstairs, Carnino noticed that a police scanner radio and three bottles of whiskey had been removed from her apartment and left at the bottom of the stairway. Once upstairs, she found that her apartment had been ransacked -- the dresser drawers thrown on the floor and the mattress disturbed. The back door to her apartment, leading to the roof and normally locked, was ajar, and a bedroom window was open. While she was examining the scene, a black male of medium build ran through her kitchen, down the hall, down the stairway, and out the front door. She saw him "[j]ust a couple of seconds," N.T. 4, and did not see his face. She believed, however, that he was one Butchy Deas, a black male whom she had employed in the past to clean her apartment, and who had access to it.

Phillip Craig testified that when he was in Carnino's apartment, he "[p]artially" saw the face of the individual who ran out. N.T. 22. He said he saw the individual "[a] few seconds," id. and that when the individual ran past him, he was four feet away. When asked who the individual was, he said it was appellant, whom he had then known for about six years. N.T. 23. When asked, "Did you make this identification to the Farrell police officers at the scene when they arrived?" Craig replied, "After about a few minutes after they arrived," N.T. 25. The following then ensued:

[ 288 Pa. Super. Page 400]

Q. Did you hear the name of Butchy Deas mentioned at all?

A. Yes.

Q. Who mentioned that name?

A. Barbara.

Q. Mrs. Carnino?

A. Yeah.

Q. Did you indicate -- Did you say anything in response to that either to Mrs. Carnino or Captain Fetsko?

A. To Captain Fetsko.

Q. What did you tell Captain Fetsko?

A. That it might have been Chip Wiley instead of Butchy Deas.

Q. All right. Was it Butchy Deas?

A. (No response.)

Q. That you saw?

A. It could have been.

Q. Well, who was it? You said -- You just testified that it was Alvin Wiley.

A. Well, at the time, you know, he come past me, you know, and it looked like Chip Wiley, and that's why I said Chip Wiley.

Q. Well, how positive are you in your identification?

MR. WHERRY: Object. Cross-examining or impeaching his own witness.

THE COURT: Overruled. You may answer.

A. Repeat the question.

THE COURT: How positive are you in your identification?

A. Not too sure.

Q. Did you testify that the individual that you saw in the apartment was Mr. Wiley at a preliminary hearing in this case?

A. Yeah.

Q. Did you tell the Farrell police officers that night, Captain Fetsko specifically, that it was Mr. Wiley who was in the apartment?

[ 288 Pa. Super. Page 401]

A. I said it might have been him. That's what I told him.

Q. Have you seen Mr. Wiley since this episode?

A. Yeah.

Q. Have you talked with him at all about this case?

A. No.

Q. Do you see the person today in this courtroom that you saw in the apartment that night?

A. Yes.

Q. Would you point him out, please.

(Defendant [ sic ] points.)

Q. Are you indicating the defendant, Mr. Wiley?

A. Yeah.

Q. All right.

MR. BELL: You may examine.

N.T. 25-27.

On cross-examination, Craig ...

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