402 A.2d 1056 | Pa. Super. Ct. | 1979
Lead Opinion
The appeal in this case arises from a judgment of sentence after the appellant’s conviction and sentencing on charges of robbery and possession of instruments of crime. Several issues are raised on appeal by the appellant.
Appellant raises a plethora of issues with regard to pretrial and trial identification procedures. All of these issues may be dealt with expeditiously.
First, appellant challenges the identification which Mrs. Smith offered at trial. This case was tried by a judge, without a jury, and the first witness called was Mrs. Smith. She was asked what happened during the January 13, 1976 incident at her home, and, inter alia, in response, she said, “and I was no more on my feet than Frank Alston came in with a gun.” The defense immediately moved for a mistrial. It was contended that in pre-trial motions to suppress identification testimony, the fact that Mrs. Smith would testify on identification had not been disclosed to the defense. Moreover, defense counsel claimed he had been given assurances by the prosecutor that Mrs. Smith would not be testifying as to identification. No detailed review of this issue is merited, because the lower court declared, during argument on post trial motions, that it had not accorded any weight whatsoever to the identification testimony offered by Mrs. Smith or relied upon it in assessing guilt. In view of the fact that this identification testimony was not considered by the lower court in its determination of guilt, we find any arguable error to have been harmless, and reject this first claim of error.
Next, appellant argues that his pre-trial motions to suppress identifications by Ms. Gorman should have been granted. The record showed that Ms. Gorman identified the
While some of the appellant’s arguments concerning identification might have arguable merit in other circumstances, we find no ground for reversal here. This is because the record clearly demonstrates that the identification offered by Ms. Gorman at trial had a basis independent of either the photographic display or the line-up. Thus, even if we assume that the pre-trial procedures were suggestive, we find, as did the lower court at the suppression hearing, that the identification by Ms. Gorman did not rest upon, nor was it tainted by, the pre-trial identification proceedings. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In reaching this conclusion, we are mindful that if there is any reasonable ground to conclude that the arguably tainted evidence in issue may have contributed to the conviction, it is not appropriate to find the error harmless. Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977).
The record shows that Ms. Gorman knew the appearance of the appellant as a steady customer of many years in a bakery where she had been employed. While she did not know his name, she recognized his face immediately when
Finally, the appellant contends that his trial was not timely held, in violation of Rule 1100 of the Rules of Criminal Procedure, which required that appellant be tried within 180 days of the date when the criminal complaint was filed against him. The record shows that on July 13, 1976, purportedly the 178th day of the critical period, a hearing was held before a judge in the lower court concerning an extension of the date for trial. The total “record” of the hearing consumes only one page of a transcript, and provides virtually no illumination on the Rule 1100 issue raised. Principally, this transcript page consists of comments by the judge, and appears to have been taken out of the context of other proceedings. To compound the uncertainty, this “hearing” appears to have been held on the day prior to the date (July 14,1976) when the Commonwealth actually filed a petition to extend the date for trial, on the 179th day of the period. Last, the lower court’s opinion, prepared as a result of the filing of this appeal, offers virtually no detail as to the procedure followed or the rationale supportive of the order extending the date for hearing. We find the record to be less susceptible to proper review in this case than that present in Commonwealth v. Barrall, 256 Pa.Super. 478, 390 A.2d 203 (1978), and we must remand for further proceedings. Upon remand, we direct the lower court’s attention to the Barrall case and to the requirements that this Court imposed in or remand there. A similar procedure is appropriate in the instant case.
Dissenting Opinion
dissenting:
I dissent. I would affirm all of the actions of the court below.
