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submitted: October 13, 1987.


Appeal from the Judgment of Sentence entered in the Court of Common Pleas of Allegheny County, Criminal Division, NO. CC 8411001.


Bruce A. Carsia, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.

Tamilia, Popovich and Cercone, JJ.

Author: Tamilia

[ 369 Pa. Super. Page 303]

By an Order dated May 5, 1987, appellant brings this appeal nunc pro tunc. The facts and procedure are as follows.

Appellant was charged on July 25, 1984 with three counts in connection with a July 26, 1983 robbery of an Allegheny County pharmacy. The counts included robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), and criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1). Although appellant had been arrested and charged with one count of robbery and one count of criminal conspiracy on July 28, 1983, the charges against him were dismissed on August 11, 1983 by a district justice because no witness could positively identify him at the hearing or at the photo array. An investigating grand jury which convened in February of 1984 concluded probable cause did exist from the record to warrant the filing of a criminal complaint against appellant and, accordingly, he was charged with the above. Appellant, on December 28, 1984, filed an omnibus motion and a motion to quash the information and to suppress statements. The motion to quash was denied on January 10, 1985, while the motion to suppress was withdrawn. Appellant pled not guilty and proceeded to trial. A jury, on January 17, 1985, returned a verdict of guilty at all three counts.

Trial counsel filed motions for new trial and in arrest of judgment on January 28, 1985; however, counsel then sought leave to withdraw and different counsel was appointed to represent the appellant. New counsel filed an additional post-verdict motion on May 29, 1985. Appellant then retained a third counsel to represent him and, on June 3, 1985, that counsel argued post-verdict motions. The motions were denied on July 9, 1985 and appellant was sentenced to serve ten (10) to twenty (20) years in prison for the robbery conviction and to serve five (5) to ten (10) years in prison for criminal conspiracy. After his motion to modify or reconsider sentence was denied, he appealed to Superior Court on August 23, 1985. This Court, on October

[ 369 Pa. Super. Page 3049]

, 1985, granted appellee's motion to quash, based upon Commonwealth v. Green, 320 Pa. Super. 85, 466 A.2d 1074 (1983).

Appellant's counsel then reargued post-trial motions nunc pro tunc; on January 31, 1986, the trial court denied the post-trial motions. A second appeal was filed with this Court on February 28, 1986. On June 3, 1986, the trial court filed an Opinion supporting the denial of the post-verdict motions. On September 8, 1986, the Superior Court dismissed appellant's second appeal without prejudice to his rights under the Post Conviction Hearing Act. Appellant then took this appeal nunc pro tunc from the January 1986 Order as directed by Judge Robert Dauer in his Order dated May 5, 1987.

The facts surrounding the robbery are as follows. Shortly after 12:00 noon on July 26, 1983, two white men wearing stocking masks entered a pharmacy, pointed a gun at the owner, Molly Winek, and another person who was in the store, Patricia Harms, and ordered them to lie on the floor. The men demanded certain schedule 2 drugs. Winek directed the men to the drugs and the men took the drugs from the shelf and put them into a bag. The men then ordered the women to remain on the floor, face down, and the men fled the store.

James O'Toole, who was sitting in his car just outside the entrance to the pharmacy, observed the two men walk past his car and enter the pharmacy. During the robbery, O'Toole, still in his car, noticed some scuffling taking place in the store. He then observed the same two men as they ran out of the pharmacy and jumped into a waiting car. O'Toole then entered the store and called the police. Officer Richard Montgomery of the Hampton Police Department testified that he received a call pertaining to an armed robbery at the Apothecary Shop at approximately 12:20 that day. Upon his arrival at the scene, James O'Toole gave him a description of the car used in the robbery; O'Toole described it as a red and white Pontiac Ventura, with the top white and the bottom red. O'Toole had said the vehicle

[ 369 Pa. Super. Page 305]

    was headed south on Route 8. (At trial, O'Toole testified the car used was a red and white Pontiac Ventura, with a full white vinyl top and was "orangish" red in color, with a sports wheel on the front with a whitewall, and no hubcap in the back. He said he had given that description to the police.) Officer Montgomery broadcast the description of the car over the police radio. Irwin Michaels, who was listening to his police scanner and heard the report, observed a car fitting the description drive up Cole Avenue. Michaels testified he saw a white male with a heavy dark beard run up Cole Avenue. He then notified the police. Both parties agree that Michaels did not identify appellant as the man he saw running up the street.

Sergeant Thomas Duffy located the car and transported O'Toole from the pharmacy to the place where the car was located. O'Toole positively identified the vehicle as the one used in the robbery. The car was parked near the home of appellant's sister, JoAnn DeSabetino, and was registered to John Theakston. Search warrants for both the car and JoAnn DeSabetino's home were obtained and executed, however, no evidence was found.

On July 28, 1983, after the home of JoAnn DeSabetino was searched, O'Toole was shown a series of twenty-seven photographs at the police station. O'Toole narrowed those down to three or four who could possibly be the offender. O'Toole testified that eventually he was able to narrow the photos down to one which was of a man with a receding hairline. He said he did not recall whether he told the police of his degree of certainty that day, but later, at the grand jury proceeding, he had responded he was 75-80 per cent sure, and at trial he was 75-80 per cent certain appellant was the same man. He further testified he was not able to positively say at the time of the photo identification that the photograph was of the perpetrator because the photographs were old and black and white, and hairstyles were different when the photos were taken (T.T. 1/10/85, p. 114). He also explained the appellant's appearance had changed since the robbery in that at the grand jury proceeding

[ 369 Pa. Super. Page 306]

    he was clean shaven and was dressed nicely, whereas at the robbery he had had a scrubby beard and had worn a sweatshirt. O'Toole said on the date of trial appellant's hairline, sideburns "and so forth" were similar to his appearance at the robbery.

According to the findings of the grand jury, appellant, when questioned by police, admitted to having the car at the time of the robbery. He said he was at his sister JoAnn DeSabetino's house on Cole Avenue. He further stated he and his wife had dropped off the car's owner, John Theakston, on the north side of Pittsburgh that morning, and they had arrived at his sister's house at approximately 12:20 p.m. He had left the house at around 12:30 and the car overheated so he left it at the corner of Kirk and Miller Avenues. Later, before the grand jury, appellant gave a different story which placed him, his wife and their son walking from the overheated car up Cole Avenue and arriving at his sister's house at about 2:30 to 3:00 p.m. The grand jury based its finding that appellant participated in the robbery on: (1) appellant's admitted possession of the vehicle used in the robbery at the time of the robbery; (2) witness identification of appellant as one of the robbers; and (3) appellant's inconsistent explanations of his whereabouts at the time of the robbery.

On appeal, appellant first argues the trial court erred in submitting the case to the grand jury and in denying his motion to quash the information. That motion had averred the indictment was violative of appellant's sixth amendment rights, the district attorney had failed to advise the grand jury that the exact charges had been previously dismissed, and no new evidence connecting appellant to the crime was submitted to the grand jury. He argues to this Court that this case did not warrant a grand jury investigation. We disagree. Appellant relies on cases which were decided prior to the enactment of the Investigating Grand Jury Act, 42 ...

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