Appeal, No. 666 | Pa. Super. Ct. | Mar 29, 1976
Opinion by
This appeal arises from appellant’s conviction after a jury trial of two counts of forgery and two counts of theft by deception. In her appeal appellant argues that she is entitled to a new trial because: (1) the proof at trial did not conform to the allegations in the indictment; (2) inadmissible hearsay evidence was used to explain inconsistencies in the identification testimony proffered by the Commonwealth; and, (3) the in-court identification was tainted by an illegal out-of-court confrontation between appellant and the Commonwealth’s witnesses. We find no reversible error with respect to these claims, and we will affirm the judgments of sentence. The facts are as follows:
On March 11, 1974, two black females, posing as Joan Bennett and Jeannie Moffatt, cashed a total of four stolen and forged payroll checks at two branch offices of Mellon Bank in Beaver County. The two bank tellers who handled the transactions did so with appropriate circumspection. Although the drawee bank was not Mellon Bank, both “Joan Bennett” (subsequently identified as appellant herein) and Jeannie Moffatt (subsequently identified as appellant’s sister), alleged to have accounts with Mellon Bank, and supplied account numbers and driver’s licenses in the names of their aliases as identification. In each case the checks were made out for less than two hundred dollars, obviating the
Appellant contended at trial that prior to March 11, 1974, her sister and she had a serious argument and were not speaking to each other, let alone doing their banking together. Appellant’s sister testified that she and another girl, whose name she could not remember, cashed the checks in the instant case, and that appellant was not with her. Appellant also testified and admitted her involvement in a»,continuing scheme of forgeries with her sister using the names Joan Bennett and Jeannie Moffatt. Obviously, despite the exculpatory evidence, the circumstantial evidence of this on-going forgery scheme, and the solid, unshakeable testimony of Mrs. Woods and Mrs. Kowalchuck identifying appellant, amply supported the jury’s verdicts of guilty.
Appellant first argues that the lower court erred in permitting the Commonwealth to amend, at trial, the alias to which the indictment referred in setting forth the facts of the instant forgeries. Apparently, at the
Pennsylvania, like most jurisdictions, has a statute which governs when an indictment may be amended at trial.
In addition, there is not the slightest hint that this amendment surprised appellant or prejudiced her defense. Commonwealth v. Pope, supra. At the suppression hearing attended by appellant’s counsel, one month before appellant’s trial; both bank tellers testified that appellant cashed the checks using the alias “Joan Bennett,” not “Jeannie Moffatt.” Hence, their testimony at trial, while at variance with the averment in the indictment, was consistent with the testimony which they had recently given at the suppression hearing. In any event, if the amendment would have had some effect on appellant’s defense, a motion for a continuance would have been the appropriate remedy. Commonwealth v. Streets, 113 Pa. Super. 65" court="Pa. Super. Ct." date_filed="1934-03-12" href="https://app.midpage.ai/document/com-of-pa-v-streets-3855204?utm_source=webapp" opinion_id="3855204">113 Pa. Superior Ct. 65 (1934).
The extrajudicial confrontation in question occurred when the bank tellers were summoned by an official of Mellon Bank to meet him at the Allegheny County Courthouse. An employee of Mellon Bank drove the ladies to the courthouse, but never disclosed, if indeed he knew, the purpose of the meeting. After they arrived at the courthouse, and while they were looking for the Mellon Bank officer, the ladies saw appellant standing, unrestrained, in the corridor. Both ladies immediately recognized appellant. In a subsequent conversation with the bank officer, the ladies informed him that they had recognized appellant as the woman who had posed as Joan Bennett. At no time during this rendezvous did the women speak to any officer or investigator for the Commonwealth. Without a doubt, the confrontation was not wholly fortuitous; but, there is no direct evidence implicating the Commonwealth in its arrangement. Mellon Bank had been the favorite target of appellant and her sister, and appellant was apparently awaiting trial for other forgeries when she was identified in the courthouse. Mellon Bank, of course, knew of the trials and could have readily arranged the confrontation without the aid of the Commonwealth. In any event, because we find that there was little evidence that this confrontation was either unduly suggestive or prejudicial in the least, we need not reach the question of whether the Commonwealth had sny burden of offering positive evidence that it was not involved in arranging the courthouse viewing.
Second, the witnesses’ testimony demonstrates that the confrontation was not unduly suggestive. The bank tellers went to the courthouse to meet with an official of Mellon Bank; and, although they presumed that the meeting had something to do with the forgeries, they were never told to look for anyone in particular other than the bank official. From among all the people whom the tellers saw in the courthouse, they immediately and simultaneously recognized appellant, despite the fact that she was not called to their attention. We do not find that this admittedly unusual kind of identification procedure violates the standards set forth in Stovall v. Denno, supra, and Neil v. Biggers, supra. Hence, based upon the totality of the circumstances, we conclude that the identification procedure employed here was not so unnecessarily suggestive and conducive to irreparable mistaken identification that appellant was denied due process of law.
. Appellant sometimes used the alias, Mattie Blackman, and her sister often operated under the “nom de plume,” Sandra Riley.
. The investigating officer, Frank Tavern, also testified that there was much confusion concerning which women used which alias when he prepared the complaint.
. Act of March 31, 1860, P.L. 427, §13, 19 P.S. §433 (1964).
. Similarly, we need not determine whether an in-court identification may be barred, because of an unduly suggestive out-of-court identification procedure,- even when the Commonwealth had nothing to do with arranging the prejudicial confrontation.
. Appellant also argues that the court improperly admitted hearsay evidence during the trial when it permitted a police officer to read a notation concerning appellant’s weight at the time of her arrest from the. back of a police photograph of her. First, no timely objection was made at .trial to the testimony, so the issue is waived. See, e.g.,