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COMMONWEALTH PENNSYLVANIA v. WALTER PERRY (02/23/82)

submitted: February 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER PERRY, APPELLANT



No. 1433 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Criminal at Nos. 2171-2173 July Term 1980.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Beck, JJ.

Author: Spaeth

[ 307 Pa. Super. Page 329]

This is an appeal from a judgment of sentence for robbery, theft and criminal conspiracy. Appellant argues that the lower court erred in not admitting a photograph of his accomplice into evidence. We agree that this was error, but find that it was harmless, and therefore affirm.

The charges against appellant arose out of the robbery of a bar by two men on July 5, 1980. The only people in the bar at the time it was robbed were the manager, Cornelia "Charlie" Harris; the barmaid, Beatrice Johnson; and the porter. Both Harris and Johnson testified at trial, and their testimony, which was substantially the same, was as follows.

At about 5:00 p.m., two men entered the bar and sat at the end of the bar counter. N.T. 1/8/81, 110-113 (Johnson). Johnson and Harris both recognized one of the men -- not appellant -- as "Slick." Id. 113 (Johnson); id. 158 (Harris). The men got up from the bar, with appellant going to the men's room, and Slick asking Johnson for a glass of water. Id. 114 (Johnson). Johnson told Slick that she was not allowed to serve him because he had robbed the bar, id. 115, and that he should talk to the manager about it. Slick went to talk to Harris, and she told him that he would not be served because he had robbed the bar "a couple of weeks ago." Id. 159 (Harris). By this time appellant had come out of the men's room. When he walked up to Harris and Slick, Harris remarked to appellant, "Gee, you're short." Id. 115 (Johnson); id. 160 (Harris). Harris was about a foot away from appellant when she said this to him, id. 161, and they were almost face to face, id. Johnson testified that appellant was "five one, five two" and "a little taller than Charlie [Ms. Harris] was." Id. 120. Harris, who is four feet eleven and one-half inches and was wearing heels that day, id. 161 (Harris), testified that Slick was "a little bit taller than" appellant, id. 169. The two men turned to leave the bar, but suddenly they turned back, and Slick had a gun in his hand. Slick told Johnson to get the cash from the cash register and appellant to get the change from the bar counter. Id.

[ 307 Pa. Super. Page 330116]

-118 (Johnson); id. 162 (Harris). The two men took the money and left the bar.

The women called the police, and when Officer Smith arrived, they gave him a description of the two men. Johnson testified that she told the officer that appellant had a mustache, a bush haircut, was about twenty-two or twenty-three, and wore a white T-shirt, khaki pants and sneakers. Id. 121-122. Harris testified that she told the officer that appellant was about 133 lbs., short, had a mustache, and wore a white T-shirt and long dark pants. Id. 167-68. Officer Smith testified that the women told him that both men were "five one and 130," id. 182, and he included this information in his holdup memorandum, which was admitted into evidence.

About two weeks later, appellant came into the bar, stayed a few minutes, and left. Johnson recognized him, and called the police. When appellant was apprehended, the same day, she identified him from a group of men. Id. 123-124. Both Johnson and Harris were positive in identifying appellant, and had no doubt that he was one of the men who robbed the bar. Id. 123-24 (Johnson); id. 170 (Harris).

Appellant and Slick, or Charles Satchel, were tried separately. At appellant's trial, defense counsel attempted to introduce into evidence the arrest photograph of Satchel, after he had successfully introduced the arrest photograph of appellant, which it was stipulated was authentic. Defense counsel argued that the photograph of Satchel "was relevant and proper and probative because the people have been described and it goes to their ability to observe, their ability to observe under stress what Mr. Satchel looks like." Id. 221-222. Defense counsel sought to show, from the information typed in at the bottom of the photograph, that ...


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