No. 02492 Philadelphia 1982, APPEAL FROM THE ORDER ENTERED JULY 22, 1982 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 81-07-2687-2692
Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Karl Baker, Assistant Public Defender, Philadelphia, for appellee.
Cavanaugh, Wieand and Cirillo, JJ. Wieand, J., files a concurring opinion. Cavanaugh, J., concurs in the result.
[ 335 Pa. Super. Page 613]
The Commonwealth appeals from an order granting appellee's post-trial motion in arrest of judgment and discharging him. We are called upon to determine whether discharge was the proper remedy for the Commonwealth's failure to conduct a court-ordered pre-trial lineup. We conclude that such a remedy was not appropriate, and accordingly reverse the order of the trial court.
Appellee Torrez was charged with robbery and related offenses stemming from an incident that occurred in Philadelphia on August 22, 1980. At about 2:00 p.m. on that date, Confesor Rodriguez, a bill collector for a furniture store, observed Torrez and another man sitting on a stoop on Stella Street. Rodriguez went into a building to make a collection; when he came out Torrez and the other man had
[ 335 Pa. Super. Page 614]
moved to another step closer to Rodriguez. As Rodriguez walked by, the two men accosted him and Torrez held a knife to his back and demanded money. Rodriguez was taken into a nearby abandoned house, bound and gagged, and $1300 taken from his pockets. The robbers then escaped in Rodriguez's car.
Torrez was not apprehended immediately. Some months later, Rodriguez spotted Torrez at least half a dozen times on the streets of the city, and alerted a Philadelphia police detective. On October 17, 1980, Rodriguez was shown a photographic array at the Detective Division. Rodriguez identified a photograph of Torrez as that of his attacker. Torrez was arrested and charged with the robbery.
At a preliminary hearing on May 27, 1981, Rodriguez told the court that he had heard that one of his assailants was dead. Based on this representation, Torrez's counsel requested a lineup. Judge Francis P. Cosgrove of the Philadelphia Municipal Court thereupon continued the preliminary hearing and ordered that a lineup be held.
On the date scheduled for the lineup, Lieutenant Margolis of the Philadelphia Police Department refused to conduct a lineup with the defendant. On June 16, 1981, Municipal Court Judge Thomas J. McCormack convened a hearing on a second defense request for a lineup. At that hearing, the prosecutor told Judge McCormack that the scheduled lineup had not been held because Torrez had substantially altered his appearance by shaving his head and mustache. Judge McCormack denied the request for a lineup.
The continued preliminary hearing was held on July 27, 1981. At the hearing Rodriguez identified Torrez, and Torrez was bound over to stand trial on charges arising from the robbery.
Torrez filed pre-trial motions to suppress the photographic and preliminary hearing identifications and to dismiss the charges, on the ground that the Commonwealth had disobeyed Judge Cosgrove's order to conduct a lineup. The ...