Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC85-00779A, CC85-02481A.
Thomas J. Michael, Pittsburgh, for appellant.
Pamela A. Runco, Assistant District Attorney, Pittsburgh, for Com., appellee.
Wieand, Kelly and Popovich, JJ. Popovich, J., recused himself and did not participate in the consideration or decision of this appeal.
[ 368 Pa. Super. Page 86]
Richardo Harris was tried by jury and was found guilty on two counts of robbery and two counts of criminal conspiracy. Post-trial motions (and supplemental post-trial motions) were denied, and Harris was sentenced to serve two consecutive terms of imprisonment for not less than two and one-half (2 1/2) years nor more than ten (10) years. On direct appeal from the judgment of sentence, Harris argues that his identification as a result of a photographic display should have been suppressed because (1) it was suggestive and (2) the array was not fully preserved. He also contends that the trial court erred by (1) denying a motion in limine to prevent reference at trial to the fact that he had been identified from a photo array displayed less than an hour after the robberies and (2) denying a motion for mistrial following a statement by counsel for a co-defendant during closing argument to the effect that identification had been made by a witness who "went through the books." Finding no merit in these arguments, we affirm the judgment of sentence.
At or about 6:30 p.m. on December 4, 1984, Debra Readel and Kimberly Ann Mellon arrived at the Elks Club in McKeesport, Allegheny County, to attend a Christmas party. As they approached the front door of the club from the parking lot, they were assaulted and their purses were taken by two black males. The area was well lighted, and one of the men came face to face with Mrs. Readel. He
[ 368 Pa. Super. Page 87]
grabbed her, punched her on the side of the head, threw her to the ground, and grabbed her purse. The second man took a purse from Mrs. Mellon. After police had been summoned, Mrs. Readel went to police headquarters where she was shown a book containing more than two hundred photographs. From these photographs she picked Richardo Harris as her assailant. The best that Mrs. Mellon could do was select a photograph of one who looked like the man who had taken her purse. On the following day, after a photograph of Curtiss Porter had been added to the display, Mrs. Mellon identified him as the man who had grabbed her purse. The man tentatively selected on the prior evening as one who looked like her assailant had been the brother of Curtiss Porter.
Harris and Porter filed omnibus pre-trial motions requesting suppression of the testimony identifying them as the robbers, and a joint hearing was held thereon. Suppression, however, was denied. After a first trial had resulted in a mistrial, Harris filed a motion in limine to prohibit testimony at the second trial which would fix the time of the photo identification of him as between thirty minutes and an hour after the crime. This evidence, he argued, would suggest to the jury that he had a prior criminal record because the police had his photograph on file. This motion was also denied. Appellant and Porter were tried together, and both men were found guilty.
In reviewing an order denying a motion to suppress evidence, a reviewing court has a duty
'. . . "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." . . . In making this determination, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.'
Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984), quoting Commonwealth v. ...