NO. 144 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal, No. 1881 C.D. of 1979.
Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, McEwen and Beck, JJ.
[ 305 Pa. Super. Page 595]
We here consider an appeal from a judgment of sentence imposed after the appellant was found guilty of robbery, following a non-jury trial, and sentenced to serve a term of imprisonment of not less than sixteen months nor more than seven years. Appellant argues that the trial judge should not have permitted identification testimony from two witnesses since that testimony was the product of an impermissibly suggestive pre-arrest identification procedure. We affirm.
The victim of the robbery testified that a man snatched her pocketbook as she walked out of an underpass in downtown Harrisburg at approximately 9:00 a.m. She got a "good look at a profile", including a look at his forehead, cheeks, chin and one eye. While she engaged in a screaming pursuit of the offender for several minutes, she was able to observe the facial characteristics for three to four seconds.
A second identification witness, who had been attracted to the crime by the screams of the victim, testified that while he ran toward the scene he had an opportunity to observe the face of the robber. This witness testified that he observed the face of the assailant on two separate occasions for a minimum total of from eight to ten seconds. Appellant testified that he was not in any way involved and that he was not even in the area of the crime.
[ 305 Pa. Super. Page 596]
The record reflects that the detective assigned to the investigation displayed a single photograph to each of the two witnesses on separate occasions shortly after the robbery. When the police displayed the photograph of appellant to the victim two days after the crime, the victim indicated that her observation of the offender had been a view of his profile and since the photograph was a front facial picture, she could not positively identify appellant from the photograph. At the subsequent preliminary hearing nineteen days after the occurrence, the victim indicated that while appellant had less hair than the robber, she testified that he was the right size, had the right build and possessed almost identical features as her assailant. At the time of the trial, five months after the occurrence, the victim provided a positive identification of appellant as the robber. The other eyewitness identified the photograph of appellant as the robber when the witness viewed the photograph nine days after the occurrence, and this witness made a positive identification of the appellant at both the preliminary hearing and at the trial.
The appellant contends that the detective engaged in a highly suggestive and, therefore, impermissible pre-arrest identification procedure that should have compelled the suppression of any subsequent court room identification. The appellant, for that reason, filed a motion to suppress identification testimony. The learned Dauphin County Common Pleas Court Judge Warren G. Morgan, by order of April 14, 1980, denied the motion of appellant to suppress that evidence after ruling, "That the in-court identification of the defendant was not the product of an illegal procedure."
That ruling appears to (1) provide approval of the identification that had been made by the victim and the eyewitness at the preliminary hearing and (2) serve as a refusal to suppress such identification testimony at the trial itself. Following his conviction, appellant reasserted his suppression claim in the motion for new trial. This motion was denied by the distinguished Dauphin County Common Pleas ...