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February 5, 1982


No. 1864 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Information No. 1399-1401; 1403, August Session, 1978.

Before Hester, Shertz and Wieand, JJ.


Appellant, Charles Pickron, was convicted of Robbery,*fn1 Criminal Conspiracy*fn2 and Unlawful Restraint.*fn3 He was sentenced to serve concurrent terms of imprisonment of two to eight years for robbery and conspiracy and two to five years for unlawful restraint. Post-verdict motions were denied and judgment was entered. This appeal followed. We affirm.

Appellant's sole contention on appeal is that the evidence was insufficient to sustain the conviction. The test for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Edwards, Pa. , 426 A.2d 550 (1981). Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction. Commonwealth v. Hickman, 453 Pa. 427, , 309 A.2d 564, 566 (1973). Evidence of identification, however, need not be positive and certain in order to convict. Indefiniteness and uncertainty in the identification testimony will go to its weight. Commonwealth v. Webster, Pa. , , 416 A.2d 491, 494 (1980).

Applying this test, the evidence was sufficient to sustain Appellant's conviction. On July 15, 1978, at 5:30 P.M., the doorbell rang at the apartment of Phillip Frakes, the victim. Frakes asked who was there. The person said his name was Charles. Frakes looked out the window and saw Appellant, whom he knew. He opened the door and Appellant walked in, immediately followed by another man who had a pistol in his hand. A third man was then admitted by the first two. The three men tied Frakes up, searched his apartment and left with approximately $400 they had found.

Shortly thereafter, Frakes called the police, at which time he reported the robbery and identified Appellant as one of the assailants. At the preliminary hearing, held five weeks after the incident, Frakes again positively identified Appellant as one of the robbers. Frakes was certain of his identifications, because he had known Appellant previously and had seen him about 100 times before. At trial, however, Frakes testified that he was no longer certain that Appellant was one of the robbers. His doubt arose from the fact that, ten days before trial, he had seen a man on the street who looked "just like the Appellant". N.T. at 12, 16. The man was accompanied by another man who looked like one of the other robbers. Frakes thought the "look-alike" was Appellant until he realized that Appellant was in custody. Based on this incident, Frakes expressed doubt as to whether Appellant was one of the men who had robbed him.

It is not essential, in the identification of one under criminal prosecution, that the witness be free from doubt as to the correctness of his opinion. Commonwealth v. Kloiber, 378 Pa. 412, , 106 A.2d 820, 824 (1954). The degree of certainty in eye-witness identification goes to the credibility of the witness and it is axiomatic that credibility is within the province of the trier of fact. Commonwealth v. Roberson, 485 Pa. 586, A.2d (1979).Thus, the fact finder is free to believe all, a part, or none, of the witness's testimony. Commonwealth v. Davis, Pa. Super. Ct. , 421 A.2d 179 (1980).

Here the trial judge, sitting as the trier of fact, found the testimony of Frakes to be credible as to the robbery and the prior identifications, but concluded that Frakes had fabricated the "look-alike" incident to avoid testifying at testify at trial. The trial judge believed that, during the time between the preliminary hearing at trial, Frakes had become an unwilling witness, as evidenced by his failure to appear for trial on two prior occasions and by the fact that it was necessary that he be arrested on a bench warrant and held in custody over the weekend prior to trial, in order to assure his presence.

Reviewing the evidence in light of the applicable law, we believe it is sufficient to sustain Appellant's conviction.

Judgment of sentence affirmed.

The case was decided prior to the expiration of SHERTZ'S ...

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