No. 143 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at No. 9810-80-10.
Sharon L. Steingard, Philadelphia, for appellant.
Eric Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P.j., McEwen and Hoffman, JJ. McEwen, J., files a concurring opinion.
[ 312 Pa. Super. Page 55]
Appellant contends that the evidence was insufficient to adjudicate him delinquent for robbery and that out-of-court identifications should have been suppressed. We find the evidence sufficient. However, because the out-of-court identifications resulted from a police station confrontation violating appellant's right to counsel, they should have been suppressed. Accordingly, we reverse and remand.
Appellant contends that the evidence was insufficient to establish his identity as a participant in the robbery. The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to it, there is sufficient evidence to find every element of the crime and the identity of the accused beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973) (identity an essential element of prosecution's case). The entire record with all evidence actually received must be considered, whether or not the lower court's rulings thereon were correct. Commonwealth v. Harper, supra. So viewed, the facts are as follows:
[ 312 Pa. Super. Page 56]
Appellant was arrested on October 14, 1980, six blocks from where a group of three youths had just snatched a gold chain from a young women's neck. The chain-snatching occurred within ten feet of a street light, with the perpetrator two-and-one half feet from the victim's face, and the other two youths standing on either side a step back. The victim's boyfriend saw the incident from the other side of a car. After another group of youths joined the three and chased the victim and her boyfriend back to the victim's house, the boyfriend pointed the assailants out to a nearby police officer. (N.T. 12/17/80 at 19). The arresting officer, on patrol a few blocks away, responded to a radio call describing three youths entering the south end of a particular alley. He arrested appellant who matched the description and was running from the north end of the alley with another youth. About one-half hour later, the police called the victim and her boyfriend to the police station, where they both picked appellant as the assailant, rather than two other youths they saw standing with the police. Id. at 8-9, 17. Appellant was subsequently charged as being either the perpetrator or an accomplice in the robbery. After a suppression hearing on December 17, 1980, at which the victim, her boyfriend, and the arresting officer testified, the lower court denied appellant's motions for suppression and recusal. At the adjudicatory hearing on January 29, 1980, the Commonwealth rested upon the record developed at the suppression hearing, while appellant presented an alibi witness. The lower court adjudicated appellant delinquent for robbery and placed him on probation, prompting this appeal.
Appellant contends that the evidence was insufficient because the victim's identifications were qualified, because the boyfriend identified appellant from his jacket, and because the record allegedly leaves reasonable doubt as to whether appellant personally snatched the chain. It is well-settled that, even though one person may be the actual perpetrator of a crime, another is equally criminally liable if he aids that person with the intent of promoting the criminal
[ 312 Pa. Super. Page 57]
act. 18 Pa.C.S.A. § 306; Commonwealth v. Bridges, 475 Pa. 535, 381 A.2d 125 (1977); Commonwealth v. Everett, 297 Pa. Superior Ct. 320, 443 A.2d 1142 (1982). Although the prosecution may be required to prove that the defendant personally committed the criminal act if it so restricts its charge, see Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979) (equally divided court); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); cf. Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971) (possessory crime), the Commonwealth here charged appellant alternatively with accomplice liability, Delinquency Petition ("in company with another"), and proved he was part of the initial group standing threateningly close to the victim and acting in concert with the perpetrator. In reviewing the sufficiency of the identification evidence, we note that, even though "vague, tenuous and uncertain" identifications standing alone are insufficient, see Commonwealth v. Farrington, 219 Pa. Superior Ct. 104, 280 A.2d 623 (1971); Commonwealth v. Sharpe, 138 Pa. Superior Ct. 156, 10 A.2d 120 (1939), our courts have held that "evidence of identification . . . needn't be positive and certain in order to convict, although any indefiniteness and uncertainty in the identification testimony goes to its weight." Commonwealth v. Hickman, supra 453 Pa. at 430, 309 A.2d at 566 (1973). Accord, Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). Similarly, although identification based solely on common items of clothing and general physical characteristics is insufficient to support a conviction, see e.g. Commonwealth v. Crews, 436 Pa. 346, 260 A.2d 771 (1970), such evidence may be considered to establish identity along with other circumstances and the proffered ...