No. 1260 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County. Imposed on Bills of Indictment Nos. 1057, 1058, 1059 and 1060, July Term, 1977.
Franklin A. Wurman, Philadelphia, for appellant.
Val Pleet Wilson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 294 Pa. Super. Page 135]
On December 12, 1977, Appellant was found guilty at a bench trial of Robbery,*fn1 Recklessly Endangering Another Person,*fn2 Weapons Offenses,*fn3 and Possessing an Instrument of Crime,*fn4 all such charges stemming from an armed robbery perpetrated by Appellant. Post trial motions were filed, argued and denied, and Appellant was sentenced upon the firearms violations to a term of imprisonment of 2 to 5 years to an identical, concurrent sentence upon the possession conviction, and to a 7-year concurrent term of probation upon the robbery conviction. On appeal, Appellant asserts error in the refusal of the suppression court to suppress an in-court identification of Appellant and he also challenges the sufficiency of the evidence.
To fully comprehend the issue raised by Appellant concerning the assertedly tainted identification, we must briefly recount the facts, and from the trial record we observe the following.
On May 24, 1977, Appellant entered Syreeta's Bar, located at 26th Street and Girard Avenue, in the City of Philadelphia, and took up a position at the bar some three feet from a patron, one William Parsons. The Appellant remained in that position for a period of four or five minutes, as both men watched a television program in progress.
[ 294 Pa. Super. Page 136]
Another patron, one Elmer Dunbar, then entered the bar, whereupon Appellant produced a handgun and directed Mr. Parsons to go behind the bar and give the money to Appellant. Parsons refused, and Appellant then ordered Mr. Dunbar and Mr. Parsons into the restroom advising Parsons that if he failed to do so, Appellant would "blow" his "head off". Both patrons understandably complied and remained in the restroom for several minutes. Mr. Parsons eventually came out of the restroom and observed that Appellant was gone, along with some liquor and the television set.
The crime was quickly reported to the police and within three hours of the event, Detectives Culbreth and Frome of the Philadelphia Police Department, assigned to the investigation, were advised by the owner of Syreeta's Bar that Appellant was one of the patrons in the bar earlier that night. Upon receiving such information, Detective Culbreth prepared a photographic array from police photographs on file with the Philadelphia Police Department and presented the array to Mr. Parsons within a few hours of the crime. Parsons identified a photograph of Appellant as a photograph of the perpetrator.*fn5 Appellant was subsequently arrested and a preliminary hearing was scheduled to be held on June 1, 1977.
On that date, immediately prior to the hearing, Appellant's counsel requested a lineup. The preliminary hearing judge refused counsel's request, but continued the hearing to a later date. Eight days thereafter, however, the Commonwealth, without notice to Appellant's counsel, conducted a lineup at the Philadelphia ...