NO. 2477 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 277-278 of February Sessions, 1979.
Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Andrew G. Gay, Philadelphia, for appellee.
Wickersham, McEwen and Lipez, JJ. Lipez, J., files a concurring opinion.
[ 305 Pa. Super. Page 518]
We here consider an appeal by the Commonwealth from a sua sponte post-verdict order of the Common Pleas Court which purported to "change" verdicts of guilty entered by the court, following a non-jury trial, to verdicts of not guilty. The post-verdict order amending the verdicts was entered some two weeks after the original verdicts had been entered and recorded. We are compelled to vacate the order amending the verdicts and reinstate the original guilty verdicts.
Appellee was found guilty of robbery and possession of an instrument of crime after a non-jury trial. The Commonwealth, at the pre-trial suppression hearing held on the motion to suppress the identification, had established the victim to be unavailable, pursuant to 42 Pa.C.S.A. § 5917, and read his preliminary hearing testimony into the record of the suppression hearing. The court immediately denied
[ 305 Pa. Super. Page 519]
the motion to suppress the former testimony of the victim and, then, proceeded with the non-jury trial of appellant. The preliminary hearing testimony of the victim was determined to be admissible and was incorporated into the notes of trial testimony. That testimony established that appellee had come upon the victim from behind on a Philadelphia street and placed either a gun or some other instrument which "clicked" at the back of the victim's head and demanded money. The robber relieved him of approximately $190.00 in five and ten dollar denominations and then told the victim to remove his shoes which were subsequently thrown down onto nearby railroad tracks. When the robber then fled, the victim called the police to report the robbery and described the assailant as a negro male, approximately thirty years old, five feet eight inches tall and wearing a brown coat, brown pants, a goatee and a mustache. The police officers, in a short while, returned to the scene with appellee who was identified by the victim as the man who robbed him. Although a sum of $51.65 was found on his person, appellee was not found to be in possession of any weapon. The arresting officer testified that the victim identified appellant as the man who robbed him.
Appellee testified at trial that he was wearing a maroon suede jacket and blue pants on the night of the robbery and stated that he did not have a beard although he had not shaved in two days. He denied committing any robbery. He further testified:
Q. Did the victim say you were the man who robbed him?
A. Not at the scene of the crime. He said -- when we got, when they took me to the 25th Detective Bureau, and then he came there, and then he said, they asked him, he was standing beside me and they said, "Is this the guy that robbed you?" He looked at me real good. At first he said, "I don't know." And the Detective kept on pressuring and ...