No. 836 PHILADELPHIA, 1981, Appeal from the judgment of sentence of April 1, 1981, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 7912-0192.
Marc Alan Krefetz, Philadelphia, for appellant.
Nancy Dena Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Beck, JJ.
[ 307 Pa. Super. Page 215]
Appellant was convicted by a jury of robbery and criminal conspiracy. His nunc pro tunc post-verdict motions were argued and denied. Thereafter he was sentenced to incarceration of from eight to sixteen years on the robbery conviction and from one to two years on the criminal conspiracy conviction; said sentences to run consecutively.
The charges resulted from an August 21, 1979 robbery of a Northeast Philadelphia bar. Two men wearing stockings over their heads entered through the front door of the bar; one was carrying a shotgun and the other a pistol. Notes of Testimony ("N.T.") 9/17/80 at 32. A third man entered through the rear door. He also wore a stocking over his head and carried a pistol. Id. They ordered the people in the bar to lie on the floor and threatened to kill them. Id. at 32-34. After taking money and personal possessions from the patrons and employees, the robbers ordered them to enter the bathroom, and they left. Id. at 34-36. At trial none of the people in the bar was able to supply a description of the robbers. The manager who was tending bar at the time of the robbery testified at trial that he was unable to see the faces of any of the robbers because of the stockings pulled over their heads. Id. at 35. He stated that he was only able to ascertain that they were black men, but he was unable to discern their features. Id. at 35, 38.
The only testimony linking appellant and two co-defendants, Michael Forrest and Clifton Fruster, to the crime was provided by Robert Duld who stated that he was driving home from work when he saw three men backing out of the bar and pulling off their masks. Id. at 45-47. He stated that one was carrying a shotgun. Id. at 46. He testified that it was broad daylight and that he stopped his car when
[ 307 Pa. Super. Page 216]
he saw them leaving the bar. Id. at 47. But it was clear from his testimony that his opportunity for observation was not ideal. He saw them from behind and at a distance of approximately twenty feet. After exiting the bar, the three men proceeded hurriedly in the opposite direction from the witness. He stated that he never observed them from a distance of any less than twenty feet, and he never saw more than a profile of any of the three.*fn1 Id. at 65-67.
Appellant correctly notes that trial counsel failed to request an instruction concerning identification testimony and that the trial court failed to instruct the jury concerning such testimony. It is clear that trial counsel failed to preserve the issue of whether the trial court erred in failing to instruct the jury on identification testimony. The question we face then is whether this omission to preserve that issue amounted to ineffective assistance of counsel.*fn2 Our standard for evaluating such claims is well-settled:
In considering appellant's claim of ineffective counsel, we are governed by Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 ...