No. 2614 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 646 of 1979.
Frank R. Bartle, Lansdale, for appellant.
Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Hester, McEwen and Cirillo, JJ.
[ 311 Pa. Super. Page 138]
We here consider an appeal from the judgment of sentence imposed after appellant was convicted by a jury of robbery, theft, possession of instruments of crime and conspiracy and sentenced to a term of imprisonment of from six to twelve years. We affirm.
The conviction of appellant arose out of an incident which occurred when appellant and his co-defendant, Richard Whittall, broke into a Bucks County apartment, occupied by a husband and wife, by prying open the door with a screw-driver. The robbers threatened both victims verbally while pointing a shotgun at them, bound their hands and feet and forced them to lie on their faces in the living room of the apartment. While both assailants were described as caucasian males, one was said to be "extremely large, like a lot of fat and [with] very, very large hands", wearing a black ski cap pulled down over his face but allowing a view of his chin with a growth of reddish blond stubble; the other assailant was described as a slender dark-haired individual who was smaller than the other man, with a small mustache and without a mask. The larger of the two men, Whittall, was described as the leader who bound the hands and feet of the victims and stood guard over them with a shotgun while appellant searched for and gathered money and jewelry throughout the apartment. The entire occurrence lasted approximately one hour. It was the larger man who issued a warning as they departed that the victims should not report the incident.
The male victim subsequently identified appellant in two separate photographic arrays, one conducted several days after the robbery and the other one day prior to the preliminary hearing. The woman was unable to identify appellant at the first photographic array but when, at the subsequent array, she was shown a picture of appellant in which his hair was shorter and more closely resembled the hair style of the shorter of the two men, she then identified appellant. Both victims identified appellant as well as Whittall at the preliminary hearing as the individuals who
[ 311 Pa. Super. Page 139]
perpetrated the robbery. Both victims also testified that on the day before trial they positively identified appellant during a six man physical lineup in the office of the prosecutor on the basis of their recollection of him from the night of the robbery.
The detective who directed the lineup in the office of the Bucks County District Attorney on the day before trial testified that both victims individually identified appellant from a group of six subjects as one of the individuals who committed the robbery. He further testified that counsel for appellant was present during the individual identification by each of the victims.
Three other witnesses for the Commonwealth offered testimony as to the complicity of appellant in the occurrences. One testified that shortly before 6 p.m. on the same evening as the robbery in the instant case, while visiting at the home of her sister in the Mount Airy section of Philadelphia, she and her relatives were also the victims of a robbery. She described the intruders as two men, one dark-haired with a trimmed black mustache and the other a heavy set man with very large hands and blond hair on his arms; she testified that like the victims in the Bucks County robbery, she and her relatives were forced to lie face down and were bound hand and foot by the heavy man who stood guard over them while the smaller man gathered the loot throughout the house. She further testified that the heavy set man stated that "you people were just not lucky" and indicated that they were not the intended victims of this robbery. (N.T. p. 166). This witness identified both co-defendant Whittall and appellant Spiegel during her testimony as the perpetrators of the Mount Airy robbery.
A further Commonwealth witness testified that he was acquainted with both appellant and co-defendant Whittall and was in their company during the afternoon and evening of the date of the robberies. He testified that he joined both individuals in Levittown, was with the two of them in the Mount Airy section of ...