No. 767 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, County of Erie, at No. 1669 of 1979.
Gary V. Skiba, Erie, for appellant.
Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
Popovich, Montgomery and Hoffman, JJ.
[ 292 Pa. Super. Page 393]
After appellant's Motion to Suppress was denied, a jury found him guilty of Robbery (18 Pa.C.S.A. § 3701) and Conspiracy (18 Pa.C.S.A. § 903). Thereafter, a Motion for a New Trial and/or in Arrest of Judgment was denied, and appellant was sentenced to a term of ten to twenty years imprisonment for Robbery and two-and-a-half to five years for Conspiracy. This appeal followed.
The appellant does not raise the question of the sufficiency of the evidence or complain of the sentence imposed, but contends, inter alia,*fn1 that counsel was ineffective for permitting the suppression hearing to be held in appellant's absence. We agree and, accordingly, remand for proceedings consistent with this Opinion.
On the date scheduled for the suppression hearing, the Commonwealth's attorney informed the court that "the eye witness [sic] [was] not present in the Courtroom. He [was] apparently out of town." (SH 3) Appellant's counsel objected to proceeding without such witness. In light of the fact that such witness' on-the-scene identification prompted appellant's arrest, counsel considered such person "an essential witness to the suppression." Id. To placate counsel, the court offered him the option either to continue the hearing to a later time or take the testimony of those witnesses who were present, and, at the completion of same, make his motion for a continuance. Counsel agreed to the latter, but, at the termination of the hearing, he never renewed his request for a continuance.
[ 292 Pa. Super. Page 394]
At the suppression, the victim did not appear. As a result, the facts elicited were from the only three witnesses (Sgt. James Mack, Officers Frank Bugaj and Donald Metzgar) who testified, viz. :
At approximately 1:20 A.M. on November 23, 1979, Andrew Yurasko was robbed of his wallet and watch by two black males as he left the Polish National Alliance (PNA) Club, located at 21st and Ash Streets in Erie, Pennsylvania. Sgt. Mack, of the Erie Police, received a radio call of the robbery and arrived on the scene within a matter of minutes. Mr. Macey, an eyewitness to the incident, approached the Sgt. and informed him that he (Macey) had observed two blacks running from the PNA parking lot and enter a 1969 or 1970 brown Buick, heading east on 21st Street. Mr. Macey told the Sgt. that the driver was wearing a light tan jacket and light tan hat, while the passenger was described as wearing a dark black hat and a dark jacket. Sgt. Mack relayed the information via radio within a minute of receiving it; within a matter of two or three minutes, Officers Metzgar and Washburn spotted the brown Buick and apprehended the two blacks therein. The stop occurred at 18th and Thompson, a site about twelve blocks from the PNA Club. The eyewitness was taken to the location and once there, with the suspects standing alongside their vehicle and the police "[r]ight with them," he identified the vehicle and the driver, Anthony Paul, but "[h]e didn't identify [the appellant]."*fn2 (SH 22) The two were then formally arrested.
Immediately after the taking of testimony, the following revealing ...