NO. 149 Pittsburgh, 1981, Appeal from the Order of December 29, 1980 in the Court of Common Pleas of Westmoreland County, Criminal Division, No. 264 C.T. 1980
David G. Petonic, Greensburg, for appellant.
Judith Karns Ciszek, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ.
[ 323 Pa. Super. Page 516]
This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Westmoreland County on December 29, 1980 following appellant's conviction in a jury trial of Criminal Attempt to Falsely Imprison.*fn1
The evidence adduced by the Commonwealth at trial established that on October 23, 1979 at approximately 7:45 a.m., Vonda Ortuglio drove her automobile into the parking lot of her place of employment, the Shop N Save supermarket located on Lowry Street in Jeannette. She locked her car and began walking toward the entrance of the store when she was accosted by a black male who, upon alighting from a passing vehicle, seized her shoulder and attempted to pull her into his automobile. Mrs. Ortuglio struggled with her assailant for a few minutes and then, having finally freed herself from his grasp, ran into the supermarket to safety. She then placed a telephone call to the State Police and reported the incident.
Investigating troopers arrived on the scene a short while later to interview the victim. Mrs. Ortuglio was asked to review eight photographs carried at the time by one of the troopers.*fn2 She was unable to identify any of the men contained in those pictures as her attacker. Later the same day, however, Mrs. Ortuglio was shown a second array
[ 323 Pa. Super. Page 517]
consisting of thirteen photographs. In this array appeared a photograph of appellant in which he wore a sign around his neck that bore the inscription "Police Dept. Jeannette, Pa.." Appellant's photograph was selected by Mrs. Ortuglio as depicting the man who set upon her in the Shop N Save parking lot that morning. Appellant was subsequently arrested and charged by complaint with criminal attempt.
On November 20, 1979, the District Attorney of Westmoreland County filed an information against appellant with the clerk of courts. The District Attorney's signature was not manually subscribed on the information. Instead, the information was "signed" with a rubber stamp facsimile signature which was then initialed by the First Assistant District Attorney of Westmoreland County, Henry A. Martin. Appellant filed an omnibus pretrial motion requesting (1) that the information be quashed (a) for jurisdictional deficiencies deriving from the failure of the District Attorney to sign the information in the manner required by Pa.R.Crim.P. 225(b) and 42 Pa.C.S.A. § 8931; and (b) because it fails to allege an essential element of the crime charged, viz., that the actions of the perpetrator were unlawful and/or committed against the will of the victim; and (2) that any identification of appellant by the victim, based upon a photograph of appellant taken by the Jeannette police in connection with their investigation of a crime for which appellant was eventually discharged, together with the photograph itself, be suppressed by reason of the photograph's suggestiveness. The lower court denied these motions but nevertheless ordered the Commonwealth to conceal the police department caption on appellant's photograph when it displayed the array to the jury during trial.
Appellant proceeded to a trial by jury on April 11, 1980 and on April 15, 1980 he was convicted of Criminal Attempt to Falsely Imprison. Post-verdict motions were filed, argued and denied by opinion and order dated December 3, 1980. On December 29, 1980, appellant appeared for sentencing
[ 323 Pa. Super. Page 518]
and was ordered to undergo confinement in a state correctional facility for a period of not less than eleven and one half months nor more than twenty-three months. This direct appeal, which presents several issues*fn3 for our disposition, then followed.
The question of whether a criminal information, which bears a rubber stamp facsimile signature of a district attorney together with the manually-inscribed initials of an assistant district attorney, has been properly "signed" within the meaning of Pa.R.Crim.P. 225(b)*fn4 and the Judicial Code*fn5 was definitely resolved by our Supreme Court in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). Therein, the Court ruled that
[ 323 Pa. Super. Page 519]
[and] the Judicial Code . . .*fn6 Id., 492 Pa. at 470, 424 A.2d at 1287.
However, the Contakos opinion makes clear that where a rubber stamp is employed to represent a district attorney's signature and an assistant district attorney initials the information near the stamped signature, the signature will be valid only if the requisite designation of authority for the assistant district attorney to so act has been filed with the clerk of courts pursuant to the mandate of 42 Pa.C.S.A. § 8931(i).*fn7 In the instant case, the Commonwealth apparently concedes that the proper designation of authority had not been filed at the time the information was stamped and initialed by the assistant district attorney. Appellant argues that because the designation of authority had not been filed prior to the filing of the information, but was instead filed only after the ...