*1 Arguеd September 1964. Before Ervin, Wright, JJ. Woodside, Watkins, Montgomery, Flood, (Rhodes, P. absent). J.,
Martin J. for appellant. Cunningham, Stephen E. him Alvin Levin, with M. Chanin, appellеe.
Opinion Per September 1964: Curiam, The Order of the Court of Common No. 7 Pleas Philadelphia County opinion is affirmed Doty report- the court Judge below, Ethan Allen & ed at 34 Pa. D. C. 2d 142. Appellant.
Commonwealth v. Wilkerson, *2 1964. Before Ervin, Argued 8, June Wright, JJ. Watkins, Montgomery, Flood, Woodside, absent). P. J., (Rhodes, appellant. E. Rieclc,
Edward District with Assistant Abromson, Attorney, Lоuis Com- District Attorney, Duggan, W. Robert him appellee. monwealth,
Opinion 1964: September 17, J., Montgomery, indictments Appellant-defendant tried on two Pеnnsyl- him armed charging robberies indict- vania Each Savings and Loan Association. on occurring ment separate charged offense, 1963. April February and the other on but him offense found the earlier guilty him latter. acquitted In appeal complains prejudice this he each separate refusal of his motion for a trial of error in the admission of a written indictment, Common- statement Robert Lee given by Allen, wealth errors the charge witness, evi- J.). He contends also (Aupern, dence conviction. We shall con- support does *3 in the complaint fine our discussiоn to of errors the trial conclude that a new charge since we on that basis. necessary In the 1962 regard February offense, 9, Eliza- relied on the of Commonwealth Miss Savings beth an of the employe Pennsylvania Pinter, positive Loan identification and Association, the defendant. Shе first identified the defendant at line-up line-up on 1963. at May 14, However, on March she did not 1962, fully held 31, identify line-up defendant but filled out a Commonwealth slip, dе- No. on which she indicated that Exhibit in one closest in line-up was the re- fendant On direct Miss to the robber. examination semblance “Q. Miss do any testifiеd: Pinter, you Pinter have were why you as to sure explanation May 14, not sure on March of were A. and 1962? you don’t I line-up just must have know, Well, —I my in the back оf and it mind, me; him came to had I had seen so that, just before I year many, I didn’t and want to On say.” cross- sure, couldn’t that testified robbery place she tоok examination follows: three to five and testified as minutes; she your “Q. ob- isn’t it Miss true Then, Pinter, in that servation of the robber was somewhat limited you only quick glimpses rob- able to take of the were you only front were able to observe the ber, part only from his face his face eyes guеss being had A. I that he down? Well, so, guess snowing I a hat on and a it was coat, outside, guess Q. if it I first limits it does. ... At this it, line-up February robbery, after the speaking you telling wе are do recall one of the about, present taller, detectives there the robber was lighter-skinned A. heavier and than the defendant? you Q. I think so. Didn’t also tell them at this time, City voice the defendant’s is, Detectives, much hoarser than the robber’s? A. I did, was Yes, line-up. Q. hoarse in . rob- his voice was . . ber’s voice was not hoarse? A. it was soft No, line-up, it as hoarse as was but it sort whisper.” of a loud
Appellant point submitted a to the subjеct which read as “3. On follows: identity keep must Defendant, prosecution mind all the and the proving Defendant. The burden of identification rests prоving on the which means Defend- Commonwealth, identity beyond as that of ant’s the robber a rea- determining In sonable doubt. whether or not the *4 jury has met the Commonwealth the should burden, the fact that the consider identification of De- the y2 during line-up not made fendant was a 1 months robbery, but the first was made after 15 after months robbery. jury The the first should also remember line-up time of the the at which that at Miss Pinter she the Defendant, identified indicated to the detec- closely Defendant the most tives the resembled standing in line-up, the those of but robber that she
217 informed the was taller, detectives the robber and Defendant and than the heavier, lighter-skinned not as that robber’s voice was so hoarse Super. Pa. Defendant. 147 Commonwealth vs. Stоltz, reason 117 for the point was “Refused (1942).” This ex- an ruling to points covered which charge,” ception was noted to defendant. Com-
The trial court charged jury the defendant’s monwealth had the burden of proving much reviewed guilt a reasonable doubt and beyond on identification of Miss Pintеr testimony mention did not defendant. the court However, cross-ex- elicited on of Miss testimony Pinter, to the effect that her observation of аmination, somewhat defendant at the time of the robbery defendant line-up limited and that at the first appeared to be less and darker-skinned shorter, heavy, Fur- and his voice was hoarser than the robber’s. cau- jury the trial court did not give thermore, identification evi- receiving the tionary instruction dence. identification and to applicable testimony law thereon is found Commonwealth (1954), A. 2d 826
v.
378 Pa.
Kloiber,
412, 424,
L.
75 S. Ct.
Ed.
Judgment dered. by J.: Opinion
Concurring Wright, of a in the new but for dif- grant trial, I concur point which troubles only me is the reason. ferent stаtement of Robert written Lee Allen. admission Allen re- Commonwealth, a witness as Called he *6 pudiated explained toto. He this statement of an al- appellant revenge had out of because accused written friend. Allen’s girl tercation concerning objection, neverthеless over permitted, statement was its part to be introduced the Commonwealth as my It jury. and was sent out with case chief, that this was reversible error. view Appellant, Ralph J. Inc. v. Giordano, Bianco,