No. 80-3-363, Appeal from Judgments of Sentence of Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1467 and 1469 March Term, 1979, entered December 18, 1979.
Ben W. Joseph, Philadelphia (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Deborah Fox, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
James Wheeler appeals from judgments of sentence of the Court of Common Pleas of Philadelphia imposed on verdicts of guilty of murder of the first degree and possession of an instrument of crime.*fn1 Appellant seeks a new trial on the grounds that identification testimony was improperly admitted at trial and that the record fails to establish the unanimity of the jury's verdict on the charge of murder. We reject appellant's contentions and affirm.
On December 5, 1978, appellant, in the presence of Michael Cottle, gave the victim, Bonito Morris, five dollars with which to purchase a quantity of marijuana. When Morris failed to deliver the marijuana, appellant went to the home of Michael Cottle and his brother, Kelly Cottle, acquaintances of Bonito Morris. Lonnie Gibbs, another acquaintance of the victim, answered the door and told appellant that Morris was not there. Appellant then threatened that "when I catch him, I'm going to hurt him. I'm going to put him underground. I don't like anybody playing with my money." Two days later, as the victim and friends were playing football on a street in Philadelphia, appellant approached Morris from behind and fatally shot him in the back.
At trial, Michael Cottle and Kelly Cottle made in-court identifications of appellant. Michael Cottle identified appellant as the man who had attempted to buy marijuana from Morris and as the man he had seen "turning around walking toward the other direction" immediately after the shooting. Kelly Cottle, who testified that he had witnessed the shooting, identified appellant as the assailant. In addition, a police officer testified that Michael and Kelly Cottle had previously identified appellant from a photographic array.
Lonnie Gibbs identified appellant as the man who had threatened Morris. Gibbs also viewed the photographic array and identified appellant's picture. However, at trial, no evidence of this out-of-court identification was introduced.
Appellant contends that the photographic array was impermissibly suggestive because, although Kelly Cottle told police prior to viewing the photographs that the assailant had worn a beard, only two of the photographs in the array depicted men with beards. On this basis, appellant argues that both the police officer's testimony as to the out-of-court identifications and the witnesses' in-court identifications should have been suppressed.
The challenged photographic identification took place approximately two months after the killing, after police had obtained evidence linking appellant with the crime. During the course of this two-month period the police questioned appellant and took a black and white Polaroid photograph of him. This photograph was used to select ten black and white Polaroid photographs from police files which, together with appellant's photograph, comprised the photographic array. Each of the ten selected photographs was of a man similar to appellant in color, weight, age and facial characteristics. A review of the photographs ...