No. 00298 Pittsburgh, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC 8202910.
Paul R. Gettleman, Zelienople, for appellant.
Melianda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Brosky, Tamilia and Roberts, JJ. Tamilia, J., files a Concurring and Dissenting Opinion.
[ 339 Pa. Super. Page 387]
This appeal is from the judgment of sentence after a jury found appellant guilty of two counts of robbery.*fn1 He contends that: (1) trial counsel was ineffective for introducing appellant's mugshot into evidence and failing to interview potential alibi witnesses; and (2) that the trial court erred in sentencing him on both robbery counts when they arose out of the same transaction. We agree in part with appellant's first contention and remand for an evidentiary hearing.
[ 339 Pa. Super. Page 388]
On January 26, 1982, a robbery occurred at the Casbah Lounge in Pittsburgh. A man came into the bar and, after being served a glass of water, pulled out a shotgun and robbed the bartender and a customer.
The following month both the bartender and the customer selected appellant's picture from a photographic array. The customer also identified appellant from a lineup. Both the bartender and the customer identified appellant at the preliminary hearing.
A pre-trial motion to suppress the identification was heard and denied by the trial court. The trial began on October 26, 1982 and, on October 27, 1982, the jury found him guilty of robbery. Post-trial motions were timely filed and denied and, on February 1, 1983, appellant was sentenced to 2 1/2 to 5 years imprisonment on one of the robbery counts and 10 years consecutive probation on the other. This appeal timely followed.
Appellant first argues that trial counsel was ineffective for introducing appellant's mugshot into evidence.*fn2 During his cross-examination of the Commonwealth's witnesses counsel used the mugshots the police had shown the witnesses in the photographic array to question these witnesses concerning their identification. After he was done with the questioning, he moved for the admission of the photos into evidence. Trial counsel also indicated that the photos were of people who had been arrested at some time.
Appellant correctly notes that generally testimony of prior criminal activity is inadmissible. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Thus, reference to a defendant's photograph from which a juror could reasonably infer that the accused had engaged in prior ...