No. 567 April Term, 1979, Appeal from Judgment of Sentence, Criminal Division, in the Court of Common Pleas of Allegheny County at No. CC 7703724.
Sally A. Frick, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for the Commonwealth, appellee.
Price, Cavanaugh and Hoffman, JJ.
[ 302 Pa. Super. Page 393]
This is an appeal by Alfred Roy Brown from a judgment of sentence for robbery, 18 Pa.C.S.A. § 3701. Appellant argues that he should be discharged because his pre-trial line-up request was improperly denied. Alternatively, appellant urges this Court to grant him a new trial on one or more of several grounds: (a) he was precluded from impeaching two Commonwealth witnesses with their prior inconsistent statements, (b) the guilty verdict was contrary
[ 302 Pa. Super. Page 394]
to law and against the weight of the evidence, and (c) the trial court erred in permitting the prosecution to proceed on an accomplice liability theory. Since we agree with appellant that his right to impeach the Commonwealth witnesses was improperly denied, the judgment of sentence is vacated and appellant's case is remanded for a new trial.
The instant charge arose from a robbery at Jean and Stan's Bar in Pittsburgh on May 11, 1977. According to bar patrons George Despert and Carolyn King, appellant entered the bar with another male and remained by the front door while his companion, holding the bartender at gunpoint, took money from the cash register and the bartender's pockets. The second male then told appellant to gather some cigarette packets, which he apparently did. The bartender was subsequently forced into the kitchen by his assailant and instructed to forfeit any other money. The several remaining bar patrons, including Despert and King, were told to do likewise when they were herded into a back room. Throughout the incident, appellant stood by the front door ushering in persons entering the bar.
Appellant, who testified in his own defense at trial, disputed the identification of him by Despert and King as mistaken. Instead, appellant testified that he was four and one-half hours away in Bethlehem, Pennsylvania, with his girlfriend Patricia Ganster. Ms. Ganster corroborated appellant's testimony.
Despert and King were the only bar patrons to identify appellant for the Commonwealth. The stipulated testimony of two other victims, William Faulk and Linwood Spivey, was that they could not identify appellant. A fifth victim, Milton Baker, testified for the defense that appellant was not the male by the front door because appellant's skin was too light.
The jury, opting to disbelieve appellant and his witnesses, convicted him of robbery on March 8, 1978. Post-verdict motions raising issues identical to those raised in the instant appeal were denied and appellant was thereafter sentenced to one to five years imprisonment.
[ 302 Pa. Super. Page 395]
Appellant first argues that he is entitled to a discharge because the court improperly denied his pre-preliminary hearing line-up request. We disagree. At the outset, we note that an accused does not have a constitutional right to a line-up. Furthermore, in Commonwealth v. Sexton, 246 Pa. Super. 30, 369 A.2d 794 (1977), rev'd, 485 Pa. 17, 25, 400 A.2d 1289, 1293 (1979), the Pennsylvania Supreme Court specifically ". . . declined to accept a per se rule that a pre-trial, pre-hearing lineup is mandatory in all cases." Nonetheless, the Court continued, ". . . where . . . the issue of identification is legitimately at issue, a timely request for a pre-trial or pre-hearing identification procedure should be granted." Ibid.
Here, it is beyond question that identification was legitimately at issue. As in Sexton, the sole evidence linking appellant to the barroom robbery was the identification testimony of George Despert and Carolyn King, both of whom had no knowledge of appellant prior to the crime. However, this case differs significantly from Sexton in that both identification witnesses had an opportunity, prior to the preliminary hearing confrontation, to view appellant: Despert made a photograph identification of appellant on May 23, 1977, two weeks before appellant's line-up request was proffered;*fn1 King had seen appellant's picture in a local newspaper.*fn2 In any event, the record demonstrates that both witnesses had ample opportunity to observe appellant during the robbery.*fn3 Under these circumstances, while it may have been preferable to conduct a line-up in order to
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ameliorate any suggestiveness necessarily inherent in a courtroom identification, and to insure the reliability of identification evidence, we cannot say that the lower court lacked justification in disallowing it.
Secondly, appellant contends that the court improperly permitted the Commonwealth to proceed against him on an accomplice theory of criminal liability, 18 Pa.C.S.A. § 306.*fn4 Appellant was informed against on the charge of
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robbery, specifically that in the course of committing a theft, namely a theft of $60 from the cash register and 15 cartons of cigarettes, he put the victim (bartender) in fear of immediate serious bodily injury. The information thus charged appellant as a perpetrator of the robbery, and not as an accomplice. However, the descriptive paragraph contained in the information stated "Actor waited by the front door of the bar as co-actor Williams robbed victim at gun point. Actor had his hand in his pocket as if he had a weapon. Actor and Williams then fled from the bar."
Before trial, the prosecutor indicated his intent to proceed on an accomplice theory of liability and requested a ruling from the court as to whether an accomplice charge would be given. Following a defense objection on the grounds that the Commonwealth, not having charged appellant as an accomplice in the information, could not now go forward on that theory, the court agreed to give the requested jury instruction.
In Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979), an equally divided Supreme Court permitted a jury charge on accomplice liability although defendant was charged by information only as a principal. We think this case falls within the purview of Perkins and, furthermore, does not offend the sentiments of the dissenters in that case whose objection was based solely on the ground that the Commonwealth's belated effort to pursue an accomplice ...