Commonwealth v. Thomas
333 A.2d 856
Pa.
1975
Check Treatment

*1 personality Smalls which would had schizoid become psychotic stress, large and under that if Smalls consumed alleged, quantities 25th, of alcohol on he could June as syndrome suffered brain which have from acute incapable differentiating between would render him of right recalling deprive him wrong, and events and happened that time. at or about expert testimony re offered ho testimony, be fute or Hoffman’s Dr. Smith’s Dr. this, argued it case was cause of the Commonwealth’s is beyond a reasonable deficient that it failed establish possessed capacity to form doubt the mental Smalls position necessary This is intent to commit the crimes. Rose, of merit. See Commonwealth devoid 380, 321 A.2d 880

Judgment orders affirmed.

MANDERINO, J., dissents. or decision part consideration NIX, J., took no of this case.

333 A.2d Pennsylvania, Appellee, COMMONWEALTH Appellant. THOMAS, Lee Samuel Pennsylvania. Supreme Court of Argued March 18, 1975. March Decided *2 Cook, appellant. Dean, Pittsburgh, John J. John R. Duggan, Eberhardt, Atty., Robert Dist. W. Robert L. L. Campbell, Lilly, Robert Thomas More Dist. Asst. Attys., appellee. Pittsburgh, for JONES, J., EAGEN, O’BRIEN,

Before ROB- C. ERTS, POMEROY, MANDERINO, NIX and JJ.

OPINION OF THE COURT EAGEN, Justice. appellant, guilty *3 found Samuel Lee was jury

by robbery a of one count two counts of armed and of assault with intent to Post trial motions were kill. denied one-half and concurrent sentences of three and years imprisonment imposed offense. ten were for each appeal, Superior judgments of the On Court affirmed the then opinionless per in sentence an curiam order. We granted allocatur. by the

These facts are disclosed record: Borough July 7, in the 1967, the LaPietra Tavern On by Rankin, up and robbed Allegheny County, was held of pistol- proprietor was of the tavern three men. July 10, 1967, at about by whipped one of the felons. On in station, located also service a. a Gulf Oil m., 11:50 who gunman, a up robbed lone Rankin, held and was July Also on manager of station. also assaulted in King Outlet p. m., Furniture 10th, about 3:15 robbed up and County, held Allegheny McKeesport, employee, was Kress, a store men, and Thomas three of the by one of the neck hit several times on back man, joined fourth a then felons. These three robbers wagon, and nearby waiting station a white Studebaker wagon p. m., station fled the scene. 3:35 stopped highway Mc- on the about seven miles from Keesport by police radio a a officer who had received via getaway robbery description report and a of guns, knife, currency stolen vehicle. Two and some during robbery outlet were found the furniture appellant Adams, wagon, station and the Walter occupants, George Cobb, and the four Ronald McKeithen placed were under arrest.

Subsequently, Thomas, Adams, McKeithen and Cobb robbery jointly were indicted No. armed [Bill 78] goods King receiving and stolen connection with indicted Furniture Outlet [Bill robbery No. alone for armed and assault with intent 90] to kill in connection the Gulf Oil service station with hold-up. jointly Adams, were in- McKeithen Cobb robbery dicted kill for armed and assault with intent in connection with the LaPietra Tavern [Bill No. 85] hold-up. pleas

On March McKeithen and Cobb entered guilty Indictment, to Bills of Nos. Com- mencing on on Bills March Thomas was tried in a 78 and on Bills Nos. 78 and 85 Nos. and Adams joint represented trial. The latter was self-retained attorney from the office counsel and former the Public Defender. *4 unduly preju

Initially, urges Thomas he was separate by indict the consolidation of the three diced partic charged in trial with ments one since he had been ipation of the only in A review two the robberies. object the consol Thomas to record reveals that failed pretrial or motion for severance idation either a post objection did raise the issue at trial. Nor he court below trial motions. issues not raised As may first are waived and not be raised for the deemed properly appeal Court, on this issue is not time this 446

before Agie, See Commonwealth 449 us. v. Pa. (1972), 296 A.2d 741 and cases therein.1 cited also contends Thomas that certain out-of-court identi- suppressed they fications should have been because were unnecessarily suggestive therefore, and, violative of due process. 1967, Denno, 293, Stovall v. (1967).2 18 L.Ed.2d 1199 that record reveals after arrest, his co-defendants, and his three were magistrate’s taken to local a office for identification. As they lot, parking were led out of the office into Mr. Kress, brought magistrate’s who had been to the office police, partici- identified Thomas as one of the pants in time, furniture outlet this custody wearing Thomas was handcuffs and was in police. July 11th, McKeesport police of the On at the station, suspects again to Mr. the four were shown Kress, least who once more identified Thomas. At two prison suspects wearing garb. then were described, confrontations, were above proscribed suggestive procedures identification Sto supra. to Mr. Denno, vall exhibited particularly suggestive Common Kress a manner. 36, (1972). Mackey, 32, A.2d wealth v. 447 Pa. 778 had been after Kress The identifications occurred Mr. judgment “prior police that the con of a made aware person the crime.” who committed citizen is the fronted Hall, A.2d exigent circumstances there no And were conducting a formal and police from preventing the to him should be attributed argues no that waiver 1. Thomas be would contends it He object to the consolidation. failure to since for a severance expected to move him to have unreasonable representing his co-defendants. two of attorney also was his guilty to plead However, two co-defendants prior to these trial trial with not stand and did brought against charges them con- object to the ample opportunity to It follows Thomas. post motions. exist, through trial at trial both solidation did at these right to counsel contending he had not is 2. Thomas identifications. out-of-court *5 447 proper line-up procedure. Mackey, Commonwealth v. su pra. testimony concerning foregoing of Kress the suppressed identifications been excluded should have However, persuaded beyond as evidence at we trial. are Chap a reasonable doubt that the error harmless. California, 18, 824, man L.Ed.2d v. 87 S.Ct. 17 (1967). 705

Granting involved, illegality confrontations Mr. Kress’ in-court identification of not constitutionally precluded as trial if the Com evidence from monwealth established this identification was free illegality. Wade, taint of initial United v. 388 States 218, 1926, ; 241, (1967) U.S. S.Ct. 1149 87 18 L.Ed.2d Burton, 521, 523, Commonwealth v. 452 Pa. 307 A.2d 277 (1973); 205, Whiting, and Commonwealth 439 211, (1970). A.2d 738 are We satisfied Com showing by monwealth did sustain its burden of “clear convincing evidence” that the in-court identification independent impermissi Mr. Kress had a basis Wade, ble out-of-court confrontations. United States v. supra, 240, at at

Our examination Mr. record indicates opportunity during Kress had sufficient Thomas view robbery the commission of the at crime. occurred p. m., light 3:15 of day, and Mr. Kress observed range period Thomas at close for a of from three to six Jennings, minutes. Commonwealth v. 446 Pa. 306- (1971). 285 A.2d 143 Thomas Mr. observed Kress wielding a knife and was even able to the name read imprinted “Barlow” Immediately on its handle. after incident, gave police Mr. Kress an identification accurately which described Commonwealth v. Thomas. Futch, 447 Pa. More A.2d 417 over, Mr. Kress never wavered in identification of his participant Thomas as a in the furniture outlet Mackey, supra, at A.2d 447 Pa. at circumstances, 781. Under the in-court identifica- testimony admitted,

tion properly being free from *6 any illegal taint of the initial confrontations.

Judgments affirmed.

ROBERTS, J., opinion. concurring filed a (concurring). ROBERTS, Justice no Because the record error commit- reveals court, the trial I concur the result reached ted the Court. trial, only evidence elicited identification in-court identification

Commonwealth was witness’s however, attempt appellant. counsel, in an Defense . impeach the witness identification, asked the witness’s suggestive Since out-of-court confrontation. about out-of-court confrontation the witness testified about the questions, may not response appellant now to defense complain. be heard deter- supports the trial court’s

Moreover, the record had established mination that convincing the in-court identifi- evidence that “clear suspect upon other observations cation based States v. suggestive United confrontation.]” than [the L.Ed.2d Wade, correctly permit- Therefore, court trial in-court identification. ted