Com. v. Perry

• Decision Date: 30 November 1982
• Parties: COMMONWEALTH of Pennsylvania v. Walter PERRY, Appellant.
• Court: Pennsylvania Superior Court

Page 608

453 A.2d 608 307 Pa.Super. 327 COMMONWEALTH of Pennsylvania
v.
Walter PERRY, Appellant. Superior Court of Pennsylvania. Submitted Feb. 23, 1982.
Filed Nov. 30, 1982.

[307 Pa.Super. 328] Elaine DeMasse, Asst. Public Defender, Philadelphia, for appellant.

Alan Sacks, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, BROSKY and BECK, JJ.

[307 Pa.Super. 329] SPAETH, Judge:

This is an appeal from a judgment of sentence for robbery, theft and criminal conspiracy. Appellant argues that the lower court erred in not admitting a photograph of his accomplice into evidence. We agree that this was error, but find that it was harmless, and therefore affirm.

The charges against appellant arose out of the robbery of a bar by two men on July 5, 1980. The only people in the bar at the time it was robbed were the manager, Cornelia "Charlie" Harris; the barmaid, Beatrice Johnson; and the porter. Both Harris and Johnson testified at trial, and their testimony, which was substantially the same, was as follows.

At about 5:00 p.m., two men entered the bar and sat at the end of the bar counter. N.T. 1/8/81, 110-113 (Johnson). Johnson and Harris both recognized one of the men--not appellant--as "Slick." Id. 113 (Johnson); id. 158 (Harris). The men got up from the bar, with appellant going to the men's room, and Slick asking Johnson for a glass of water. Id. 114 (Johnson). Johnson told Slick that she was not allowed to serve him because he had robbed the bar, id. 115, and that he should talk to the manager about it. Slick went to talk to Harris, and she told him that he would not be served because he had robbed the bar "a couple of weeks ago." Id. 159 (Harris). By this time appellant had come out of the men's room. When he walked up to Harris and Slick, Harris remarked to appellant, "Gee, you're short." Id. 115 (Johnson); id. 160 (Harris). Harris was about a foot away from appellant when she said this to him, id. 161, and they were almost face to face, id. Johnson testified that appellant was "five one, five two" and "a little taller than

Page 609

Charlie [Ms. Harris] was." Id. 120. Harris, who is four feet eleven and one-half inches and was wearing heels that day, id. 161 (Harris), testified that Slick was "a little bit taller than" appellant, id. 169. The two men turned to leave the bar, but suddenly they turned back, and Slick had a gun in his hand. Slick told Johnson to get the cash from the cash register and appellant to get the change from the bar counter. Id. [307 Pa.Super. 330] 116-118 (Johnson); id. 162 (Harris). The two men took the money and left the bar.

The women called the police, and when Officer Smith arrived, they gave him a description of the two men. Johnson testified that she told the officer that appellant had a mustache, a...