No. 1770, October Term, 1977, Appeal from judgment of conviction of the Court of Common Pleas of Philadelphia County, Criminal Trial Division at Numbers 531 & 532, April Term, 1976.
Colie B. Chappelle, Philadelphia, for appellant.
Franklin L. Noel, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Cavanaugh and O'Kicki,*fn* JJ. Spaeth, J., concurs in the result.
[ 302 Pa. Super. Page 460]
This case arises from a burglary of a building at 327 Cherry Street, "Designers Frank Noffer, Inc." in Philadelphia by appellant, Allen Anderson, on March 6, 1976. Police were summoned by an eye witness, Thomas Yep, who provided a description of the suspect which was relayed to the
[ 302 Pa. Super. Page 461]
officers en route to the scene. Upon arrival, Officer Sebastian Sammartino of the Philadelphia Police Department observed the appellant (who fit the radio description) fleeing the scene. After ordering the appellant to halt, and upon his failure to do so, the officer shot him. A screwdriver was retrieved from the person of the appellant along with a green cap, which had fallen off and which became a source of contention at trial. The appellant was taken to the hospital, where he was questioned. Subsequent to this, the eye witness identified him from photographs as the man he observed entering the burglared building.
Prior to jury selection, appellant's counsel requested a continuance. This motion, along with various other pretrial motions were denied, becoming a focal point on appeal. Trial by jury commenced and appellant was convicted of burglary and possessing an instrument of crime. He was then sentenced to eight to twenty years on the burglary charge and two and one-half to five years concurrently on the possessory offense. Appellant's requests for relief in post-verdict motions were denied in an opinion by the Trial Judge. This appeal followed alleging both procedural and substantive error.
Appellant first contends that the in-court identification by the eye witness was constitutionally defective and thus constitutes reversible error. Mr. Yep, the eye witness, was previously shown a single photograph of appellant subsequent to appellant's arrest and questioning at the hospital. This improper photo identification was suppressed by stipulation of counsel and was not admitted during the trial. However, appellant maintains that Yep's in-court identification was tainted by the prior showing of this photo and that no independent basis existed to render the in-court identification reliable.
The Suppression Court found as a fact that Yep's observation of appellant attempting to enter the burglarized building included an adequate facial view, under good lighting conditions for a period of about 5 to 7 minutes from an approximate distance of 20 feet. The court concluded, that
[ 302 Pa. Super. Page 462]
this initial, on-the-scene identification by Yep was "clearly reliable, untainted and nonsuggestive and Yep may testify to it at trial." (Goodheart, J., ...