No. 242 Philadelphia, 1980, Appeal from the judgment of sentence of the Court of Common Pleas, Criminal Trial Division, at No. 78-6268.
Before Brosky, Watkins & Montgomery, JJ.
This case concerns the defendant-appellant's appeal from a judgment of sentence of the Court of Common Pleas of Delaware County, Criminal Division. The defendant was sentenced to a term of imprisonment of four to ten (4 10) years after a jury convicted him of robbery and other related offenses.
Defendant's conviction was for the robbery of a service station at gunpoint on 4:35 p.m. on November 5, 1978. The gun was pointed at an attendant while the perpetrator held his knee against a second attendant who was seated in a chair. Both attendants identified the defendant as the perpetrator from a photographic array. The validity of the identification was raised in a pre-trial suppression motion. The defendant's motion was denied. He now argues that his counsel was ineffective at the suppression hearing because he did not sequester the Commonwealth witnesses and did not cross-examine them competently. We disagree. Both witnesses testified that the defendant was the person who robbed the service station. His photograph was chosen out of a photographic array by both attendants. We cannot presume that the failure to sequester identification witnesses at the suppression hearing is incompetent behaviour on the part of the defendant's counsel. Both witness had identified defendant as the perpetrator prior to the hearing. COMMONWEALTH V. FANT, 480 Pa. 587, 391 A.2d 1040 (1978). We will not presume that a failure to sequester identification witnesses is automatically incompetent representation. A review of the record also demonstrates that the cross examination of the Commonwealth witnesses was not incompetent. Merely because an attorney could have asked other questions than he did does not render his representation inadequate.
Next, the defendant argues that it was error to hold the suppression hearing only twelve days after defendant's arraignment. He claims that the holding of the hearing less than thirty days after the arraignment constitutes a denial of due process. The defendant cites no authority for this proposition. When the defendant files a motion it is his duty to be prepared to go ahead with it. The defendant was not prejudiced by the fact that the hearing was held when it was. Pa. Rules Crim. Pro. 323(e) provides that a suppression hearing shall be set at such a time as shall afford the Commonwealth a "reasonable opportunity for investigation". Thus said Rule is for the benefit of the Commonwealth. As stated above when the defendant files a motion it is his responsibility to be prepared to go ahead with the hearing.
Next, the defendant argues that the court erred in refusing his second request for a continuance. He had been granted his first request for a continuance. The granting of a continuance is within the sound discretion of the trial court. Ungar v. Sarafite, 376 U.S. 595 (1964). The defendant's request for a continuance was based upon his contention that he needed the transcript of the notes of testimony from the suppression hearing. However, the defendant could have made his request for the transcript prior to the trial date. We do not find that the trial court abused its discretion in denying defendant's second request for a continuance even though he had retained new counsel. Defendant's first counsel, the public defender, could have assisted his private counsel in the preparation for the trial. The lower court found that the defendant and his counsel had adequate time to prepare for trial. We will not overturn that finding except for abuse of discretion. Such was not the case here.
Finally, the defendant contends that the court erred in its charge to the jury when it stated: "Where the opportunity for positive identification is good, were (sic) the opportunity for positive identification is good, is the witness positive of his or her identification. Has the identification been weakened by prior failure or on other occasions to identify and has the identification remained steady under cross-examination". The defendant argues that this charge limited the jury's consideration on the credibility of the identification testimony to the consideration as to whether evidence of a prior failure to identify had been presented. However, in its charge on identification the court below also added:
"The testimony as to identification is to be examined in the ordinary fashion by application of the general rules of credibility which we have given you.
"And this rule, as you see, rests upon the combined and basic factor of opportunity for observation, that is the time and the circumstances for and of observation; and capacity for memory, which includes its specificity, that is its details, and its steadiness and consistency, whether or not it varied from time to time, whether or not it was shaken or disturbed.
"In summary, an identification should be of such a degree of certainty, steadliness or consistency as to convince you beyond a reasonable doubt that the defendant was the perpetrator of the crime."
We will not consider one, isolated portion at a judge's charge to a jury without reading the charge in its entirety. We must read the charge as a whole in deciding upon its validity. Commonwealth v. Zapata, 447 Pa. 322, 390 A.2d 114 (1972). Taken as a whole the charge was proper and certainly did not amount to reversible error.
Judgment of sentence affirmed.