*3 HESTER, Before CATANIA, HOFFMAN and JJ.* HESTER, Judge:
Appellant Dennis M. Thomas was convicted with a co-de- fendant in a jury trial on charges theft, of robbery, receiv- ing stolen property, simple assault, and criminal conspiracy.1 Post trial motions were argued and denied and an aggregate sentence of two to five years imprisonment was imposed. followed, This appeal in which appellant posits three issues for our determination.
Facts adduced at trial established the following scenario of events. On the evening December the com- plainant Stephen Porter attended an Gilbertsville, auction in Pennsylvania, where he was successful in selling his automo- bile for the sum of Following auction, the began $625.00. he * Judge Catania, President Francis J. of the Court of Common Pleas of County, Pennsylvania, sitting by designation. Delaware Code, 3701, 3921, 3925, 2701, 1. Crimes respective- Pa.C.S.A. § ly. Glenside, miles about 55 home in to his search for a ride to hitchhike and decided to finally He east of Gilbertsville. men, driver and a two a by Route 73 up on picked was soon Porter climbed Volkswagen, heading east. in a passenger men were informed that the two was back seat and into the in Press”, nearby an establishment the “Wine going Press, After at the Wine arriving Limerick, Pennsylvania. but hitchhiking, two men and resumed the Porter thanked men in the same two up by the again picked soon was Collegeville. to drive Porter who offered Volkswagen car distance, turned the some the driver travelling After he the parked Game land where dirt road onto State down a both by was ordered out of the car out. Porter got car and driver, whereupon the jaw by hit in the men and was the passenger all of Porter’s As money. men demanded two Porter, pockets the victim onto emptied waved a club at woods, at a seeking nearby and fled into the aid ground night with When he returned to the scene later home. Officers, money, Police all of his about Township Limerick $635.00, gone, was as were robbers. later, array photo-
A few Porter was shown an hours and identified the police at the Limerick station graphs addition, driver of the car. In Porter herein as the appellant and stated he of one Warren Hart photograph chose the arrested, Hart was but passenger. like the looked Hence, incident. not to be involved in the shown later group Porter chose from another December of co-defendant William Kocher. picture photographs arrested, tried, with along and convicted Kocher was then appellant. first asserts that he is entitled to a new
Appellant
against
weight
were
because the verdicts
trial
ground
of a new trial on the
grant
evidence. The
of the evidence is committed
against
weight
verdict
of the trial court. Commonwealth
sound discretion
(1978); Common
Instantly, *5 was also to the linked crime by Volkswagen. Porter car in testified that the which he bore inscription rode “Adiós, spray painted M.F.” on the back. Appellant arrested in front of his home on December as he from a alighted Volkswagen bearing these words. Addition- a registration number ally, by recorded an observant witness during Porter’s ordeal the registration matched of the car in appellant’s driveway. The that appellant fact offered alibi evidence does defeat not the verdicts. “Where the evidence is conflicting, the of the credibility witness is for the solely jury findings if its supported record, are by trial court’s denial of a motion for a new trial will not be disturbed.” v. Zapata, 447 Pa. Appellant challenges next the admission of Porter’s in- court of At identification him. the pre-trial suppression hearing, the “by court found the narrowest margins”, of as photographic displays to both defendants were unduly suggestive and not could be admitted at trial. The court also ruled that Porter permitted would be to identify both of his assailants in since court were identifications any found to have a basis independent pre-trial sugges- tiveness. The particular photo array defects in the as to appellant were description these: Porter’s of the driver of male, 5'10", of a car was that white 5'8" or missing or teeth, length bent front shoulder light blonde hair. From the seven or eight photos complainant, shown to the it seems three, two or only including appellant’s matched descrip- this tion, thus improperly suggesting appellant as the perpetra- Nonetheless, tor. the court found that view Porter’s appellant at the time of the crime was sufficient to allow the identification, in-court irrespective the tainted pretrial Appellant identification. challenges finding. now this to a Subsequent suggestive out of court confronta tion, if, an in-court identification is admissible considering circumstances, totality in-court had identification independent origin an sufficiently distinguishable from the illegal so as to purged encounter U. primary taint. L.Ed.2d 1149 Wade, S.Ct. 388 U.S. S. *6 S., 471, 407, 83 S.Ct. 9 v. U. 371 U.S. Wong Sun (1967); 478 v. Pa. (1963); Connolly, L.Ed.2d 441 472 (1978); Commonwealth v. Pa. Taylor, need only an basis independent Such 1197 by clear and convinc by the Commonwealth be established Cox, 466 353 v. Pa. A.2d ing evidence. Fowler, 198, 352 466 Pa. (1976); Commonwealth 844 (1976); Diggs, an indepen In order to determine whether exists, following rely basis we criteria: dent the to view the criminal at opportunity the of witness attention, crime, degree of the the time of the the witness’ criminal, the prior description of the level of accuracy confrontation, at the and the certainty of demonstrated Against and confrontation. time between the crime the weighed corrupting effect of the these factors to be the suggestive identification itself. 98, 114, 2243, 2253, Braithwaite, 432 S.Ct.
Manson
U.S.
(1977);
Neil
409 U.S.
199-
Biggers,
53 L.Ed.2d
Fowler,
375, 382,
Taylor,
On
stopped
Volkswagen
the
under a
appellant as the latter
into
along Route 73. The victim looked
the car
utility lamp
one
engaged
side and
in a
minute
passenger
from the
viewing
the while
their
occupants,
conversation with the
all
Press,
During
ride to
Wine
range.
faces
close
at
which
elapsed during
appellant
minutes
occa
about fifteen
they
with
When
arrived at
sionally
speak
turned
Porter.
Press,
again
appellant by
light
Porter
observed
the Wine
lot
he thanked is soon-to-be assailant for
parking
as
later, appellant
the lift. Minutes
and Kocher offered the
during
ride
complainant
Collegeville
a further
which
with and
at close
spoke
appellant
Porter
observed
again
and the
range.
pulled
When the car
into the woods
occu
shine
Porter observed
in the
pants
appellant
exited.
Altogether, Porter was in
headlights.
company
ap-
pellant approximately one-half hour that evening convers-
ing with
viewing
him and
him distances of no more than a
few feet. The
variation between
only
description
Porter’s
appellant’s
the driver and
physical characteristics was appar-
ently
appellant sported
that
a moustache while
ne-
Porter
mention same.
glected to
At the photographic identifica-
tion,
merely
incident,
conducted
three hours after the
Porter
expressed “no
photo
doubt”
of appellant was indeed
6/2/78, p.
the driver. N.T.
85. In view of such certainty,
ample
opportunity
and
observe the driver on the
crime,2
evening of
the corrupting influence of the photo
minimal,
array was
particularly where we deal with a victim
. . intelligent
who
“articulate .
perceptions
[whose]
are considerably
6/5/78,
keener than most” N.T.
pp. 138-9.
*7
We are
was,
thus satisfied that
this identification
the
on
whole, “reliable,” Manson, supra; Commonwealth v. Steffy,
(1979),
and that the in-court
also,
properly
identification was
admitted. See
Common-
Farrel,
wealth v.
Defects (a) Informal Defects: warrant in appearing under a or person
No arrested discharged or citation shall be a summons response to case be dismissed because of any from nor shall custody citation, summons, in the complaint, defects any informal citation, or war- warrant, complaint, summons or but so rant, remedy any time as to any be amended may informality. such Defects:
(b) Substantive citation, summons or warrant contains a If a complaint, discharged defect, defendant shall be un- substantive rule Nothing in this shall less waives the defect. he new or citation and the filing complaint of a prevent defect is corrected in a in which the process issuance proper manner. is, of an offense from a thus,
It the omission clear that which cannot a “substantive defect” complaint constitutes Common- amending complaint. by merely be remedied Mirarchi, Fitzpatrick v. 481 Pa. wealth ex rel. *8 Herstine, 264 (1978); Pa.Super. Commonwealth v.
1346 cf. Jonnet, 414, 265 (1979); also, 1228 Common- (1979); 401 A.2d see Pa.Super. Brocklehurst, 335, 404 1317 Pa.Super. 266 A.2d wealth v. prohibition against substan- (1979). purpose The behind hearing pre-trial is before us and thus we are on this motion dispute again how this factual resolved. unable to determine moreover, court, any post to this in declined discuss issue The verdict appellant respect opinion, though in included claim in its even Court, appellant again post before this trial motions. In briefs by objecting preserved alleges properly the claim that his counsel dispute preliminary hearing. now does not The Commonwealth proper objection that we will assume this averment hence was made. 48 changes
tive is to “assure that the defendant receives proper charges notice of the him against filed and to allow him time case.” properly prepare Jones, his Commonwealth v. 50 471, 481, Pa.Super. 378 A.2d 1249 Common- King, wealth v. 227 Pa.Super. 260 sought made, When an amendment is be the court should inquire specified whether the crime in original complaint involves the same basic elements and evolved out of the specified same factual situation as the in one the amended complaint. this If is so:
then the defendant is deemed to placed have been notice regarding alleged If, criminal conduct. how- ever, the amended provision alleges a different set of events, for the or elements defenses to the amended crime materially are different from the or elements defenses to the crime originally charged, such that the defendant would be prejudiced by change, then the amendment is not permitted. v. Stanley, 212-213, 265 (1979) (footnotes omitted).
A.2d
We think it outright clear an substitution of a a co-conspirator named in complaint constitutes “a different
set events” and require “materially could different de fenses” the accused. A charge conspiring with one Hart commit certain offenses must necessarily embrace a unique setting factual which is radically altered when the charge seeks to that appellant conspired Kocher, Further, with and not Hart. a proposed defense to charge a conspiracy may be rendered useless and a new defense strategy called may depending upon whom to have alleged conspired defendant with. This is thus not a case wherein the complaint alleges a but conspiracy, avers that the identities one or more conspirators are co— unknown, Am.Jur.2d, Conspiracy, 28, or where the § identity of the co-conspirator blank, is omitted left yet or the accused fully aware of is, who his co-conspirator Brown, Commonwealth v. Indeed, the Supreme over years Court drew ago
49
and
issue
the latter cases
the
between
a marked distinction
Commonwealth,
(1875),
Pa. 495
78
Rough
In
at hand.
a
liquor without
selling
was accused of
the defendant
where
space
license,
buyer
of his
was inserted
the name
not
The court did
blank in the indictment.
left
theretofore
stated,
of the
“We are
material
and
change
this
be a
find
name
another
Had
opinion
proper.
the amendment
exhibiting a
indictment,
offered
the
and evidence
been in
the letter of
variance,
case
have fallen within
would
as the
great
us
is not so
a variance
It seems to
a blank
Act.4
conveys no
wrong
merely
name. The former
averment of a
information;
misleads.” 78 Pa. at
actually
but
latter
added);
When a
see Anno.
that
the invalidity
portions
of some
the judgment
of
of
always
sentence
require
does not
a remand for resentencing,
as where the
on
sentence
the invalid
minimis,
count was de
Moore,
92,
Commonwealth v.
261 Pa.Super.
We this think is such a case. On the convictions for robbery conspiracy, and the court imposed sen concurrent imprisonment. tences of two to five years On the remaining charges, suspended. sentence was Our review of appellant’s hearing sentencing juvenile reveals a short criminal record a and more adult lengthy marijuana record involving posses burglaries sion and a in string Berks County. The court specifically record, found that appellant’s past coupled with convictions, present compels the conclusion that a term of incarceration is warranted to reduce the risk that he would commit another persuaded offense. We are that a sentence, remand would in instantly only result the same Grant, cf. supra.
Judgment of sentence for conspiracy is
ap-
reversed and
pellant
discharged
on that count. Judgments of sentence
RSP,
theft,
for robbery,
simple
and
assault are affirmed.
J.,
HOFFMAN,
a
files
concurring
dissenting
opinion.
HOFFMAN, Judge, concurring and dissenting:
I
Although
agree that we must
the judgment
reverse
sentence on the charge
conspiracy,
I dissent from that
affirming
judgments
opinion
majority’s
portion
The proper
convictions.
remaining
appellant’s
sentence
this,
convic
in which an invalid
such as
in a case
procedure
the sentence on
have influenced
may
one count
tion on
resentencing
remand for
conviction, is to
another
Lockhart,
Pa.Super.
conviction.
valid
Stufflet,
also Commonwealth
(1972). See
(1979); Common