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COMMONWEALTH PENNSYLVANIA v. JERRY IVY (07/16/82)

filed: July 16, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JERRY IVY, APPELLANT



No. 1842 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 205, 206, 207, 209, 210, 212, 213, 215, 216, 218 and 219 May Term, 1979.

COUNSEL

Louis Lipschitz, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Cavanaugh and Lipez, JJ.

Author: Cavanaugh

[ 302 Pa. Super. Page 117]

Appellant Jerry Ivy was convicted by a jury of five counts of robbery, five counts of criminal conspiracy, and one count of possessing an instrument of crime. Post-verdict motions were denied and appellant was sentenced to consecutive terms of three to six years incarceration on each of the five robbery counts and concurrent terms of one to three years on each of the conspiracy charges. Sentence was suspended on the charge of possessing an instrument of crime. Appellant filed a timely appeal to this court. For the reasons discussed below, we vacate the judgment of sentence on four out of the five criminal conspiracy charges and affirm the remaining judgments of sentence.

At approximately 9:00 p.m. on April 2, 1979, appellant and two companions boarded a SEPTA bus at Hedge and Orthodox Streets in Northeast Philadelphia. The appellant grabbed the driver, James Carroll, in a headlock, put a gun

[ 302 Pa. Super. Page 118]

    to his throat and said, "Don't move sucker. This is a stick-up." Mr. Carroll raised his hands over his head and appellant stated, "Don't move or I will blow your brains out." While appellant held Mr. Carroll at gun point, his companions moved among the passengers collecting money and other possessions, threatening to have Mr. Carroll killed unless the passengers complied. Charles Donnelly, a passenger seated directly behind Mr. Carroll, refused to give up his wallet. Appellant, without releasing his hold on Mr. Carroll, reached over and placed the gun to Mr. Donnelly's cheek, ordering him to give up the wallet or have his brains blown out. Mr. Donnelly then turned over his wallet. When they had completed the robbery, appellant and his two companions fled on foot.

Mr. Carroll proceeded approximately three blocks and then stopped a police car and informed the officers in it of the robbery. The police officers took descriptions of the robbers from several of the passengers. One of the passengers, Frederick Mongan, told the police that he had seen the robbers before in the neighborhood. He agreed to ride around the neighborhood with a police detective in order to search for the robbers. He did not see appellant at that time but he did identify one of the accomplices. While in the police car, Mr. Mongan was shown a number of photographs, but he was unable to identify anyone. The appellant's picture was not among those shown to Mr. Mongan.

At approximately 10:30 p. m. the same evening, appellant was arrested on the basis of information received from an anonymous telephone caller. While appellant was waiting in the squad room at the police station, the bus driver and several of the passengers were brought in individually and asked if they could identify anyone. Three passengers, Frederick Mongan and John and Mary Korabik, identified appellant as the gunman in the robbery. Mr. Carroll, the bus driver, and Mr. Donnelly, the passenger who had a gun held to his cheek, did not make positive identifications at that time.

[ 302 Pa. Super. Page 119]

Following a pre-trial suppression hearing, the lower court granted appellant's motion to suppress the identifications made at the police station as the product of an unnecessarily suggestive identification procedure. The suppression court refused, however, to suppress later in-court identifications, finding that they were independently based. At trial, Mr. Carroll, Mr. Donnelly, Mr. ...


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