235 Pa. Super. 321 | Pa. Super. Ct. | 1975
Opinion by
Appeal is taken from Judgment of Sentence rendered on May 2, 1974, following trial at which appellant was found guilty of aggravated robbery and burglary. On June 28,1972, a clothing store in Philadelphia was robbed. Miss Harris, the manager, gave a description of a woman. Pursuant to that description and approximately two weeks later, appellant, dressed in female clothes, was arrested. The complainant had identified appellant from photographs and, after his arrest, again at a line-up. Appellant’s suppression of evidence request was denied, and he was held for trial.
Appellant first argues that it is error for the trial court to deny his request to see the statement given by complainant to the police. Commonwealth v. Smith, 417
Appellant argues that denying production of the line-up summary sheet, police photo, and array photographs was error. In Commonwealth v. Jackson, 227 Pa.
Appellant next raises the argument that his arrest was without probable cause, citing Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). These cases are similar to the degree that the police had general descriptions of clothing and nationality or color. However, in the instant case the facts fill the blanks which called for reversal in Berrios; namely, the police knew size, weight, and the fact that such a person wore the clothes of a female. For the appellant to argue that it was a neighborhood frequented by female impersonators does not expose to possibility of arrest the large numbers of citizens, which possibility led to the holding in Berrios.
Appellant’s argument of undue delay between arrest and preliminary arraignment has been waived because it was not raised at either the suppression hearing or trial. See Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972), and Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Appellant lastly argues that the line-up was unduly suggestive. See Stovall v. Denno, 388 U.S. 293 (1967), Commonwealth v. Williams, 440 Pa. 400, 270 A.2d 226 (1970), and Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973). We hold that the circumstances of the instant line-up were not so suggestive as to lead to mistaken identification and denial of due process. Due to the unique circumstance that appellant was a female impersonator, the police were faced with the problem of whether to have males or females in the line-up. Because appellant at the scene of the crime had appeared as a female, and because complainant had viewed the perpetrator of the crime as such, the police determined that it would be fairer to have women in the other positions at the line-up. The police who conducted the line-up called around the city in futile efforts to see if female impersonators could be obtained for this line-up. Appellant appeared in female disguise. The participants approached a common ground as to age, weight, complexion, and slender build. On the issue of height differential alone we will not find error in the line-up. See Commonwealth v. Kitchen, supra.
Affirmed.
Hoffman, J., concurs in result.
. Appellant’s argument that counsel was needed at this identification falls because the factual situation occurred before Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974).