NO. 1663 PHILADELPHIA, 1980, Appeal from the judgment of sentence of July 9, 1980, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No. 2410-2413 October Term, 1979.
Marc Alan Krefetz, Philadelphia, for appellant.
Gail Thackery, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Beck and Hoffman, JJ. Wieand, J., concurs in the result.
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On the morning of May 17, 1979, two men, later identified as appellant Robert McKnight and one Clifford Fruster, entered the Jeans Joint on Frankford Avenue, Philadelphia, shortly after the manager James Lomax opened the store for business at 10 AM. McKnight and Fruster shopped for clothing, selecting underwear, two jogging suits, Puma sneakers, a suede jacket, and some sweatshirts, altogether about $200 worth of merchandise. When Lomax added up
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the purchases, Fruster pulled out a revolver and ordered Lomax to open the register. Fruster took the $65 in cash which the register contained. While this was going on, McKnight went over to a woman shopper, the only other person in the store, and forced her to lie face down on the floor. The two men then placed Lomax on the floor, tied him up with a belt, and left the store with the cash and the merchandise.
McKnight and Fruster were brought to trial before a judge and a jury in March, 1980, and convicted. McKnight was found guilty of robbery and conspiracy and sentenced to two and one half to five years imprisonment for robbery and a concurrent seven year term of probation for conspiracy. Post-trial motions for a new trial and in arrest of judgment were filed, and this direct appeal followed.
The prosecution's case against McKnight and his co-defendant turned on Lomax's identification of the robbers, and the forms of this identification inter alia are now challenged. Appellant McKnight raises two issues. First, he charges that his constitutional right to counsel was violated by two pre-trial identifications at which his counsel was not present. His second claim is ineffective assistance of counsel at trial. He argues that trial counsel failed to preserve, by post-trial motion, a challenge to a ruling of the lower court. This ruling sustained the Commonwealth's objection to the defense's cross-examination of Lomax. In addition, he claims that trial counsel failed to object to the prosecution's closing statement which alluded to a remark made by one of the robbers during the crime. This statement, he contends, suggested that appellant had a criminal record. Since McKnight is represented by new counsel for this appeal, the claim of prior ineffective assistance is properly before this Court. Com. v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Our review begins with McKnight's challenge to the two pretrial identifications. Lomax first identified McKnight at an uncounselled photographic display on September 13, 1979, at which time McKnight was under arrest and in
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custody but not for the Jeans Joint robbery (R. 31).*fn1 Appellant contends that he was entitled to representation by counsel at the showing of the photos, relying on the authority of Com. v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970); cert. denied 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1971). Whiting stood for the rule that the right to counsel attaches to pretrial photographic identifications of a suspect in custody. Subsequent to Whiting, the United States Supreme Court considerably reduced the Sixth Amendment right to counsel at photo displays for identification. In United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619 (1973) the Supreme Court ruled, in a review of a case in which photos of the suspect were displayed after indictment: "We hold . . . ...