NO. 105 E.D. Appeal Dkt. 1982, Appeal from the Order of the Superior Court at No. 1608, Philadelphia, 1980, filed February 26, 1982 reversing the Order of the Court of Common Pleas of Lehigh County filed June 18, 1980 at No. 880 of 1978.
Richard Tomsho, Deputy Dist. Atty., for appellant.
Fredrick Charles, Public Defender, Edward R. Eidelman, Allentown, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a dissenting opinion in which Roberts, C.j., joins.
This is an appeal from the order of the Superior Court, reversing an order of the Court of Common Pleas of Lehigh
County denying appellee's motion for a new trial.*fn1 After examination of appellant's claim, we reverse.
The salient facts are as follows:
On April 23, 1978 at approximately 7:00 P.M., the Thrifty Car Wash on West Union Boulevard, Bethlehem, Pennsylvania, was robbed of nearly five hundred ($500.00) dollars. On June 29, 1978, appellee, Keith Reiss, (hereinafter "defendant") was arrested and charged with robbery,*fn2 simple assault,*fn3 felonious restraint*fn4 and theft*fn5 pursuant to a complaint filed June 27, 1978. Defendant's trial commenced on January 18, 1979 before the Honorable Henry V. Scheirer, after which he was found guilty of all charges. Post trial motions were filed, argued and denied.
Appeal was taken to the Superior Court and in an order dated February 26, 1982, a three judge panel in a two to one decision, reversed and remanded. Appellant herein petitioned this court for allowance of appeal and we granted allocatur.
In this appeal a single issue is raised. Whether the trial judge correctly permitted testimony of the victim's photographic identification of the defendant. The Commonwealth's main witness at trial was Matthew Kleckner, the victim, who described the incident and identified defendant as the perpetrator of the crime. (Trial Transcript, hereinafter "T.T." pages 4-14 and 37-40, 1/18/79). It is the reference at trial to the pre-trial photographic identification
of defendant made by Kleckner, that is the basis of this appeal.
The first reference to defendant's photograph occurred during direct examination of the victim:
Q. Now on that same date, the date of the incident, were you with Investigator Haller back ...