Commonwealth v. Collura

• Decision Date: 28 December 1956
• Docket Number: 3687
• Parties: COMMONWEALTH of Pennsylvania v. Frank COLLURA, Appellant.
• Court: Pennsylvania Superior Court

128 A.2d 101

183 Pa.Super. 17

COMMONWEALTH of Pennsylvania v. Frank COLLURA, Appellant.

No. 3687

the Superior Court of Pennsylvania

December 28, 1956

Argued November 13, 1956

Appeals, Nos. 208, 209, 210 and 211, April T., 1956, from judgments and sentences of Courts of Oyer and Terminer and Quarter Sessions, Allegheny County, Feb. T., 1956, Nos. 96 97, 98 and 349, in case of Commonwealth of Pennsylvania v Frank Collura. Judgments affirmed.

Indictments charging defendant with robbery and impersonating an officer. Before MCCREARY, P.J., specially presiding.

Verdicts of guilty as to certain of charges of robbery, and one charge of impersonating an officer, and judgments of sentence entered thereon. Defendant appealed.

Judgment and sentences are affirmed.

Louis C. Glasso, for appellant.

Samuel Strauss, Assistant District Attorney, with him Edward C. Boyle, District Attorney, and William Claney Smith, Assistant District Attorney, for appellee.

Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.

OPINION

GUNTHER, J.

The defendant, an ex-constable, was tried on ten indictments, six charging robbery and four charging false impersonation of an officer. He was acquitted on six charges and found guilty on Nos. 96, 97, and 98 February Term, 1956 (O. & T.) charging robbery, and on No. 349 February Sessions, 1956 (Q.S.) charging the misdemeanor of impersonating an officer.

Motion for a new trial assigning the reasons that (a) the verdict was against the weight of the evidence, and (b) that the charge was prejudicial to the defendant was refused by a court en banc. Defendant was sentenced to pay the costs of prosecution, a fine of one dollar and be committed to the Western Correctional, Diagnostic and Classification Center to undergo imprisonment for a term of not less than five years nor more than ten years. Identical sentences were imposed at Nos. 96, 97, and 98, to run concurrently; sentence was suspended in the case at No. 349.

From these sentences the defendant now appeals.

Counsel for defendant submits for our review statements of three questions involved.

(1) Are the verdicts against the weight of the credible evidence?

(2) Did the court commit reversible error in misquoting certain testimony in its charge?

(3) Did the court in its charge so emphasize the testimony as to commit reversible error? The court en banc answered the questions in the negative.

Our review of the testimony reveals that the victims in each case were elderly men. They were followed by a person in a car who stopped and ordered them into the car under the pretext that defendant was conducting an investigation. The victims were searched and relieved of their valuables either by force or threats. One of the victims, John Hass, testified that he noted the license number of the car to be 31EEI or F. He identified the defendant in a police stand-up and also identified him at the trial. John Alexander, another victim, testified that he noted the first four digits of the license number of the car to be 31EE. He identified the defendant in a police stand-up and also identified him at the trial. The victim, Gaetano Catino, identified the defendant at a police stand-up and at the trial. Defendant contends that the evidence, with reference to identification, is incredible and unreliable. The lower court in its opinion, however, specifically points out that the guilty verdicts were returned only in those cases where the victims identified the defendant without hesitation in a police stand-up after the robbery, as well as at the time of trial. In each instance, where guilty verdicts were returned, the crime was committed in broad daylight and the victims had a good look at the defendant.

In Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, the Court said: "Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross examination, positive and unqualified, the testimony as to identification need not be received with caution - indeed the cases hold - his (positive) testimony as to identity may be treated as the statement of fact." See Commonwealth v. Ricci, 161 Pa.Super. 193, 54 A.2d 51; Commonwealth v. Sharpe, 138 Pa.Super. 156, 10 A.2d 120.

At the trial, one of the victims identified the defendant as follows:

Q. I want you to look at the men and see whether or not you see the man here in the court room.

A. He is sitting right there.

Q. Are you absolutely sure?

A. As there is a God in heaven, there is the man that robbed me.

Credibility of the witnesses is for the jury, and if there is sufficient evidence to sustain a conviction it will not be disturbed by our appellate courts.

There is other testimony to the effect that Valerie Hass, the victim's daughter, testified that the day following the robbery the wife and daughter of the defendant came to their home, and offered to pay the money back if the victim would go to...