No. 52 January Term, 1979, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, CP 1277, 1595 and 1598, September 10, 1979.
Peter C. Bowers, Bala Cynwyd, Philadelphia County (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, Philadelphia County, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion. Kauffman, J., concurred in the result.
Appellant Theodore Floyd was arrested and charged with the killing of 18-year-old Michael Reed on November 24, 1977. Michael Reed and his companion, Calvin Hill, were visiting a friend in the 1600 block of South Ringgold Street in the City of Philadelphia. Michael and Calvin left their friend's home at about 3:30 in the afternoon and proceeded to walk south on Ringgold Street. After walking a short distance Michael yelled, "Run." Calvin in response turned and saw appellant and a Michael Williams, both of whom he knew, approaching them. Appellant pointed a gun at Michael and pulled the trigger, but the gun misfired. Appellant and Williams continued to pursue the decedent and Calvin Hill. During that chase, appellant fatally shot Michael Reed in the back. When Michael fell to the ground, appellant repeatedly kicked him as Williams stood nearby. Appellant and Williams then fled from the scene. These events were also witnessed by a Mr. Keith Shepherd.
After jury trial, appellant was convicted of murder in the first degree and conspiracy. Post-trial motions were filed, argued, and dismissed. Appellant was sentenced to consecutive prison terms of life imprisonment on the murder charge and to one (1) to ten (10) years imprisonment for the conspiracy offense. This direct appeal followed.
The first assignment of error is that prior to trial the court below improperly raised defendant's bail from $10,000 to $25,000. It is asserted the action of the court in increasing the bail was improper and that appellant is entitled to a new trial.
Even if we were to assume that the bail was improperly raised, although our review of the record suggests otherwise, we have been presented with no authority, nor do we know of any, that would indicate the awarding of
a retrial as the appropriate remedy. Although appellant notes that bail affords an accused a greater opportunity to participate in the preparation of his defense, he has not been able to specifically state that his defense in this instance was in any way prejudiced or that on retrial he can produce evidence that he was prevented from obtaining because of his alleged improper pre-trial incarceration due to the increase in bail.*fn1 In substance, the argument presented is that as a prophylactic measure we should award him a retrial to punish the court for what he claims was an improper detention. Prophylactic rules are employed only when there is an indication of a widespread practice which cannot be otherwise eradicated. Commonwealth v. Kulp, 476 Pa. 358, 362-63, 382 A.2d 1209, 1211-12 (1978); Commonwealth v. Williams, 454 Pa. 368, 372, 312 A.2d 597, 599-600 (1973); see generally, Mapp v. Ohio, 367 U.S. 643, 651-52, 81 S.Ct. 1684, 1689-90, 6 L.Ed.2d 1081 (1961). Here there is no basis for considering the instant complaint as falling within such a category.
Prior to trial appellant filed a motion to suppress any identification testimony by Mr. Keith Shepherd at trial. The denial of this motion is now assigned as error. It is argued that Mr. Shepherd's identification testimony should have been suppressed because of the obvious suggestiveness of the confrontation which occurred at the preliminary hearing. The question of courtroom confrontations was recently fully considered by this Court in Commonwealth v. Sexton, 485 Pa. 17, 21-22, 400 A.2d 1289, 1291 (1979):
There are many cases in the federal courts, where the initial one-on-one confrontation between an accused and an identifying witness occurs at an in-court preliminary hearing, which have held the identification procedures not to be unduly suggestive and the identification evidence derived therefrom to be reliable. See e. g., Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240