*2 WICKERSHAM, and MONTGOM- Before MONTEMURO ERY, JJ.
MONTEMURO,Judge: May from of sentence. On appeal judgment This is an Grahame, 9, 1981, to appellant, found the pers endangering of another guilty robbery,1 recklessly be post-ver filed appellant timely on2 and The conspiracy.3 to the court en banc. On argued dict motions which were 30, 1982, opinion deny the court issued an order and April 1982, 16, appellant ing July these motions. On (15) (7x/2) fifteen years sentenced to and one-half seven (2) (1) to robbery, one imprisonment charge on charge recklessly endanger imprisonment on the years (1) (2) years imprison and one to two ing person, another All sentences were conspiracy. on the charge ment appeal This concurrently. timely so run imposed as to followed.
1. § 18 Pa.C.S. 3901.
2. Id. 2705. §
3. Id. § us to asks consider multiple allegations court; however, by
error the trial we need only consider the appellant’s contention that the court erred in denying appellant’s demurrer to all for of sufficient charges want evidence submit case the jury. demurrer, note initially purposes
We
for
of ...
[his]
[appellant]
...
admitted all the facts
Common-
wealth’s evidence tended to
and all
prove
inferences rea-
sonably deducible from those facts. Commonwealth v.
(1976);
5,
Long, 467 Pa.
Act of June
§
§
357, 1,
P.L.
In ruling
No.
19 P.S. 481.
a demurrer
test to
proper
applied
be
the trial court
is
whether
Commonwealth’s evidence and all reason-
able inferences therefrom is sufficient to
a find-
support
ing by
guilty beyond
the trier of fact
the accused is
Duncan,
reasonable doubt. Commonwealth v.
473 Pa.
*3
(1977). (Footnote omitted).
Pamela Kranich testified that on she December Supermarket as a cashier at the Food Lane employed P.M., on Berwick in Easton. At 7:30 a approximately Street entered the store. Ms. young recog- black male Kranich Parks, nized the male as Alton whom she had known minutes, near the previously. Parks stood door for a few inquired and then Kranich. He if the store approached replied negatively. carried “hats”. Kranich store, Parks left the but returned after a few minutes males. At the outset of Mrs. Kra- with two other black stated, nich’s she “he came back with two testimony, are in front of gentlemen, sitting right other which [sic] appel- us.” identified one of the men as She then co-defendant, prosecutor Williams. The Darnell lant’s asked: Mr. Grahame question, where
Q. repeat my I time? next to Darnell. Standing A. present Grahame, is that Mr. you say
Q. When today? in the courtroom here Yes he is.
A. pointed then section aids beauty the health and men went to The three They then minutes. store, there for few remaining of the picked of the men aisle.” One “cupcake proceeded register. up it to the brought pie or up cupcake Darnell Williams rang up purchase, When Ms. Kranich into men reached The three shotgun. a sawed-off produced they money, and took all of the cash drawer open Ms. Kranich left and bag. The men gym into a stuffed security alarm. means police by alerted the later, Mu- Detective to three weeks Approximately to Ms. eight photographs of six to array an showed gavero photograph out a pick from which she was able Kranich who robbed one of the men as of Darnell Williams Kranich, 18, 1981, accompanied by Mrs. March store.4 On Nich- Attorney and Assistant District Mugavero Detective Prison to County Northampton went Englesson, olas of five comprised line-up The first line-up. conduct a perpetrators alleged any not include males, did but as one of identify anyone Ms. Kranich did robbery. conducted; this one line-up was A second the robbers. *4 Kra- Ms. including males of ten comprised one of the robbers. appellant as identify the nich failed defense counsel admitted to line-up, she At the time (N.T. at man. at the third good a look get that she did testified, thusly: Kranich also Ms. evening? in the store that lighting was the Q. How picked a robbery, Ms. Kranich one week after Approximately pic- approximately ten array of Parks from an photograph of Alton tures. A. Clear.
Q. Clear. About as clear as the courtroom today? A. Yes.
Q. you So had problem no whatsoever seeing these perpetrators that came into the market?
A. Yes.
Q. You did not have any problem, did you? A. No.
Q. got You a good look at them?
A. I only got a look at two of them.
Q. Who are the you got good a look at? A. Alton Parks and Darnell Williams.
Q. Did you get good look at the gentlemen seated over there to my left?
IA. took a quick glance.
Q. But not a good look?
A. No.
Q. Did you ever see him before? No,
A. I have not.
Q. you Did ever see him after?
A. No.
Q. You did not?
A. No.
Q. Do you recall having preliminary hearing on this matter? Yes,
A. I do.
Q. you there, So him saw didn’t you?
A. Yes.
Q. Okay. you Do having recall up line you present were concerning this case?
A. Yes.
Q. And there, too, saw him you? didn’t A. I wasn’t sure. Well,
Q. did or didn’t you? MR. YEDOMSKY: She just testified she was not sure. THE COURT: The objection is sustained. *5 whether or he at
Q. present You do not know not was line up? A. No.
(N.T. 56-57). prelimi- further at admitted that at “All hearing in this matter she had testified that nary of Ms. look alike.” Cross-examination blacks this exchange: Kranich concluded with me, remember, Q. How times did tell if many you you look at you get good person? that did not the third Many A. times. [sic]
Q. up, times. One was at the line Many [sic] correct?
A. Yes.
Q. you prelimi- And once testified under oath at the good did not third nary hearing you get look at the guy, correct?
A. Yes. trial,
Q. here right jurors, you And before these stating get good are did not look at the third person, right? Right.
A. either, him in Q. pick up, And could a line could you?
A. No. Kranich, So, Miss
Q. basically, you really do not know was, who that third do Do you? you, really? A. No. examination, prosecutor attempted
On redirect respect rehabilitate Ms. Kranich with to her identification testimony:
Q. being You identified Alton Parks as one of Okay. is that correct? perpetrators; A. Yes.
Q. people Was Darnell Williams one who robbed you?
A. Yes. who,
Q. people Was Lawrence Grahame one also, robbed you?
A. I don’t remember. *6 The Commonwealth thereafter called Alton Parks as witness.5 Parks testified that he robbed the Lane Food Market, appellant “but these two and his [the co-defendant] didn’t.” Parks was directed to tell the court the identities of the other he perpetrators, but refused.6 The plea surprise Commonwealth made a of and asked continue examination of Parks as cross-examination. The argument they Commonwealth’s were surprised was premised on oral allegedly an statement made Parks Mugavero implicating appellant Detective the and Wil- court; however, liams. was the granted by Permission the prosecutor never asked Parks this in the about statement Commonwealth’s case-in-chief.
Thereafter, produced the Commonwealth the testimony Englesson, Assistant District Attorney Nicholas who testi- fied line-up about the conditions at the of March The then Mugavero Commonwealth offered Detective as a witness. Mugavero Detective testified that he the officer; Al- investigating that he arrested and interviewed Parks; ton photographic that he conducted the array which included the photograph Alton Parks and the photo- graphic included array photograph the of Darnell Williams. He further testified that he was at Alton Park’s Proceeding; Juvenile hearings for Darnell Preliminary appellant; Williams for suppression and the hearing Williams, Darnell the line-up for Lawrence Grahame. examination, On redirect the Detective testified that Ms. hearing. Kranich preliminary identified An objection question to the to this led answer was sustained, disregard instructed juvenile separately 5. Parks was tried because he at the time the incident. contempt by 6. Parks was held in direct criminal his court for refusal to answer. again, answer. Once the Commonwealth failed to inquire implicating about Park’s statement the Finally, the Commonwealth offered the of Don- Kowalski, ald the Food Lane Manager, who testified that approximately missing one thousand dollars was from the store.
Co-defendant, Williams, Darnell testified in his own be- half and offered an alibi as to his day whereabouts robbery. appellant, having demurred to the Commonwealth’s case offered no evidence in his own be- half. rebuttal,
On again called Alton Parks as a witness. The asked: prosecutor
“Isn’t it a fact that after arrested were admitted *7 market, to Detective had Mugavero you robbed the that, and not only but that Darnell Williams and Mr. Grahame were along with when robbed it?” To replied, which Parks “I don’t The question remember?” posed again and Parks testified that he did not make that statement
Reviewing all of the testimony produced by Common- trial, wealth at we must conclude that the trial court erred in denying appellant’s demurrer to all The charges. Com- monwealth proven committed; has that a robbery was males; it was by committed three and that two of black males were Alton appel- Parks and Darnell Williams. The lant, alleged by the Commonwealth to be the third black involved, male is connected to the crime by identification Kranich, testimony of Pamela who later stated that she did get man; a good look at the third that she did not know was; who the third man and that she did not if remember Lawrence Grahame Her was one of robbers.
is further weakened her failure to Mr. by identify Grahame at pretrial line-up, her statement that blacks “[a]ll look alike.”
232 judicial
We are of the cognizant admonitions concerning the province jury: of the in
The resolution of conflicts
the testimony
presented
trial and the
determination
the wit-
credibility solely
nesses is
province
within the
the jury. Com-
Whack,
137,
Pa.
393
(1978).
monwealth v.
482
A.2d 417
A
is
all
free
believe
or none of the testimony
presented
Tate,
180,
at trial.
v.
Pa.
Commonwealth
485
(1979),
401 A.2d
in
discrepancies
353
testimony are
Martin,
for the jury to resolve. Commonwealth v.
515,
(1978).
Pa.
Proof identity reasonable doubt of the accused as who committed the is crime essen- tial to a Reid, conviction. v. Commonwealth Pa.Su- 459, per. (1936). 187 A 263 identification, evidence of however, positive needn’t be and certain in order to convict, although any indefiniteness and in uncertainty testimony goes the identification to its weight. Com- Mason, 328, monwealth 211 Pa.Super. v.
(1967).
Hickman,
Commonwealth
453 Pa.
309 A.2d
in
(Emphasis
original). We also reiterate
the rule
set forth
v. Kloiber,
378 Pa.
*8
412, 424-25,
826,
820,
106 A.2d
denied,
cert.
Kloiber v.
875,
Pennsylvania,
348
75
U.S.
S.Ct.
I DISSENT! 9, 1981, held trial were before proceedings
On June Franciosa, of the Judge Honorable Michael V. Court in trial Northampton a criminal County Common Pleas Grahame, Jr., involving appellant.1 Pame- witnesses was principal One testified that December la Kranich. She called p.m. supermarket 7:30 at a working about she in the time. years age Early Food Lane. She advised court and that two her direct she store, got pie and a and came persons cupcake entered the Wil- register. point she said that Darnell to her At (N.T. 23). said Darnell on her pulled gun liams in the on trial and she courtroom Williams “gentleman him the white sweater.” pointed out as Williams. with co-defendant Darnell 1. Grahame was tried *9 234 Grahame, Jr.,
She testified further that Lawrence herein, was next standing to Darnell she and stated that Grahame the person present was in on the courtroom trial. pointed him She said that Lawrence Grahame was a carrying gym bag and that he and Williams and a third of name Alton Parks her emptied put drawer of money bag it in the gym Grahame was left carrying. They pushed and she security alarm and called her boss.
Her identification of the defendant
positive
was
on direct
examination.
Any subsequent
her
uncertainty
identifica-
tion, developed
questioning
counsel,
during
by defense
for the
I
jury.
agree with the
Northamp-
conclusion
Banc ton County Court
En
this issue where
stated:
they
When case
does
any suggestive
involve
identifica-
tion proceedings, the Commonwealth’s burden is simply
to introduce
enough
conjecture.
evidence solid
avoid
Crews, Commonwealth v.
Pa.
I would affirm the conviction and judgment sentence.