No. 2615 Philadelphia 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF THE COURT OF COMMON PLEAS, CRIMINAL DIVISION, OF LACKAWANNA COUNTY AT NO. 80-1104.
John Joseph Cerra, Carbondale, for appellant.
Ernest D. Preate, Jr., District Attorney, Scranton, for Com., appellee.
Hester, Cavanaugh and Cirillo, JJ. Cavanaugh, J., files a dissenting opinion.
[ 316 Pa. Super. Page 464]
This is an appeal from the judgment of sentence issued by Munley, J., on October 5, 1981. The appellant, William Caswell, was convicted in a jury proceeding and found guilty of robbery,*fn1 receiving stolen property,*fn2 and conspiracy.*fn3 His motions for a new trial and in arrest of judgment were denied and this appeal followed.*fn4
On February 16, 1980, the Giant Market located in Scranton, Pennsylvania, was held up by three men, apparently wearing false mustaches and beards. One of these men was identified as the appellant. At trial, the dairy manager testified that one of the men had a gun and that one was heavy-set. The manager of the store, Mr. Yaninek, testified that the appellant had the gun and announced that a hold up was taking place. He then directed Mr. Yaninek to open the store safe. The appellant then placed a good deal of money into a shopping bag. After the robbery, Mr. Yaninek described to the police the person who took the money from the safe as a heavy-set man weighing about 230 pounds with a mustache and goatee. At a police line-up on
[ 316 Pa. Super. Page 465]
May 20, 1980, Mr. Yaninek also identified the appellant, although through an error he circled the wrong number on the paper given to him by the police. Additionally, at trial, the store manager unequivocally testified with respect to the appellant: "I'm positive that was the man."
The appellant was also identified by Barbara Zlotnicki, the head cashier in the store. She was a short distance from the appellant who held a gun on her and the manager as he removed money from the safe and placed it in a shopping bag. At trial she described the appellant's appearance as follows:
A. Well, he stuck out like a sore thumb. He had a sweatshirt on and he had a cap on, a ski cap. And he had a hood on the sweatshirt and the hood was down. He had a ski cap that came down over his eye and covered right to the back of his head.
Q. What do you mean by over his eye?
A. Well, above his eyebrow, is what I meant. It was right above his eyebrow, went right around his head. And he had a fake mustache and a fake goatee on.
Q. How do you know it was a fake mustache and fake goatee?
A. The mustache was on like scotch tape or something. It was coming off on the side. It just appeared to be. It wasn't real at all.
Q. Did you see his hair at all, the hair on his head?
A. Part of it was hanging down over his ears and over the back, over the collar of his coat and sweatshirt.
A. Sort of a darkish-brown, brassy-type.
A. It was sort of like a brassy brown or something. That didn't look real either.
Q. What do you mean, it didn't look real?
A. It looked like it was dyed or something. It was hard to tell. It needed to be cut or trimmed or something.
[ 316 Pa. Super. Page 466]
It looked like -- it could have been a wig or it could have been his own hair pulled down by the hat, but whatever --
Ms. Zlotnicki had observed the appellant from a distance of two and a half to three feet for about three minutes in a brightly lit office.
One witness, Sharon Edmondson, also an employee of the store, testified that a heavy-set man, with a gun, was one of the robbers and that he "took" the manager into the office. She was in the presence of the heavy-set man for only a "second" and did not see his face. She did not identify the appellant at trial as being involved in the crime.
On appeal, appellant challenges the validity of his identification and the effectiveness of trial counsel for not raising this issue in post-trial motions. Initially, the ...