Commonwealth v. Sharpe

• Decision Date: 19 December 1939
• Docket Number: 290-1939
• Parties: Commonwealth v. Sharpe, Appellant
• Court: Pennsylvania Superior Court

10 A.2d 120

138 Pa.Super. 156

Commonwealth v. Sharpe, Appellant

No. 290-1939

Superior Court of Pennsylvania

December 19, 1939

Argued November 13, 1939

Appeal from judgment and sentence of Q. S., Phila. Co., December Sessions, 1938, No. 577, after trial and conviction of defendant on indictment No. 577 as aforesaid, and indictments Nos. 579 and 581, in Q. S. Phila. Co., December Sessions 1938, in case of Commonwealth v. Vincent Sharpe.

Indictments charging robbery and related offenses. Before Millar, J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on all indictments; judgment and sentence on indictment No. 577. Defendant appealed.

Error assigned, among others, was the action of the trial judge in submitting the case to the jury.

Judgment reversed.

Milton S. Leidner, for appellant.

Franklin E. Barr, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Hirt, J.

Defendant was convicted of robbery and other related offenses committed in the office of the yarn mill of Durnley Brothers in Philadelphia County. Allegedly, he was one of two men who entered the building and robbed the employees in charge, of pay-roll monies amounting to $ 3,476. The second man was neither apprehended nor identified. Defendant was sentenced only for robbery, to serve from 5 to 10 years in the Philadelphia County prison running concurrently with a sentence of from 1 to 20 years for another crime, imposed in 1933. At the close of the Commonwealth's case defendant's demurrer to the evidence was overruled. He did not take the stand nor offer any evidence in his behalf but rested and submitted a request for a directed verdict of not guilty which also was refused. These rulings of the court are assigned as error raising the single question of the sufficiency of the evidence to sustain the conviction.

Defendant apparently was taken into custody upon suspicion merely. That the crimes were committed by someone is not disputed and the only evidence connecting defendant with the robbery is the testimony of identification. It is seriously contended that this evidence standing alone and without corroborating circumstances is insufficient to support the verdict. It is necessary, therefore, to review all of the testimony on the subject.

The robbery was committed in broad daylight by two masked men who had entered the office of Durnley Mills, one of them armed with a gun. Four employees in the office observed the latter. The office manager when asked, referring to the defendant: "What can you say about identifying this man?" replied: "I can't positively identify him beyond the fact that there is a general resemblance as to age and build and approximate height." He said: "It was a man such as this one" who came through the window but he could not positively say under oath that this defendant was the man though he resembled him in age, height and general characteristics. Another employee testified: "The only identification I can give is the same as has been given, the general height and appearance from the top of the nose up, the eyes." To the question: "Are you willing to say under oath this is the man who held you up?" he also answered: "No." A stenographer testified that defendant resembled the robber in stature, color of hair, and general appearance but she could not say that the defendant was the man. The prosecutor, Sichell, perhaps had the most favorable opportunity to observe the men and when asked: "Can you identify the defendant as one of them?" answered: "Well, putting the question that way, I would say no." On two occasions he was summoned to view a line-up of prisoners; the defendant was in the second group and he testified that then "something clicked that he was the man I had seen, from the eyes, general build and hair"; "something clicked at that time and I said 'that is the man as far as I can tell.'" When asked: "You still feel the same way?" he answered: "I do" but on cross-examination he also testified that he would not say positively and without doubt that the defendant was the man. This is the testimony or its substance, in its entirety upon which the jury convicted the defendant.

Where a witness has been acquainted with the subject of identification or has had the opportunity of observing him on prior occasions, his testimony as to identity may be treated as the statement of a fact. But where, one is observed for the first...