Opinion
March 11, 1974.
June 21, 1974.
Criminal Law — Evidence — Aggravated robbery — Identification of defendant at scene of crime — Admission into evidence of pistol found 15 minutes after police left the scene of the arrest — Foundation for admission of evidence — Weight of evidence for jury.
1. Shortly after a robbery, the police discovered the getaway car with three men inside, one of whom was defendant, parked on a street in the vicinity of the crime. The police searched the men and found the precise amount of money which had been taken. The victim witnessed the search and subsequently identified the men at a pretrial lineup. The car was left unattended for about 15 minutes and when the police returned they found a pistol under the car which was admitted into evidence. Defendant's contentions that the victim's identification was tainted by his presence at the scene of the arrest and that a proper foundation had not been laid prior to admitting the pistol into evidence, were Held to be without merit.
2. The propriety of the "show-up" identification by a victim depends principally upon its proximity to the time and place of the crime.
3. Positive testimony linking the weapon to the crime is not required prior to its introduction into evidence; a lack of such testimony affects only the weight of the evidence, not its admissibility.
4. It was Held in this case that the victim's testimony that the robber used a pistol in the holdup, combined with the testimony that the weapon was found under the car in which the defendant had been riding only 15 minutes after the police left the vehicle, constituted a sufficient foundation for admitting the pistol into evidence.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 156, March T., 1974, from judgment of sentence of Court of Common Pleas of Dauphin County, No. 2502 of 1972, in case of Commonwealth of Pennsylvania v. Barry Manns. Judgment of sentence affirmed.
Indictment charging defendant with aggravated robbery. Before WICKERSHAM, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
J. Richard Oare, Jr., Assistant Public Defender, and Richard D. Walker, Public Defender, for appellant.
Wallace B. Eldridge, III, Assistant District Attorney, Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Submitted March 11, 1974.
This is an appeal from the judgment of sentence entered against the defendant on a charge of aggravated robbery.
On October 9, 1972, shortly after William Wright had opened his store, a man entered and pushed what appeared to Mr. Wright to be a .45 caliber pistol into his stomach. After Mr. Wright wisely gave the culprit all his money, the man fled to a waiting vehicle which then drove away. Mr. Wright immediately gave chase in his son's car, but was unable to keep up with the getaway car. He then returned to his store where he gave the police a description of the getaway car and the number of men that were in it. Shortly thereafter the police discovered the car with three men inside parked on a street in the vicinity of the crime. The police searched the men and found almost the precise amount of money which had been taken from Mr. Wright, sixty-four dollars, which was found stuffed into the socks of one of the men. Mr. Wright witnessed this search. Subsequently, Mr. Wright also identified the men at a pre-trial line-up.
After the men were transported "downtown," the police returned to the scene of the arrest in order to impound the car. The police then noticed an object under the car, which they discovered to be a loaded .45 caliber pistol and an extra clip of bullets wrapped in an orange towel. On the basis of all this evidence, the jury found the defendant guilty of aggravated robbery.
The defendant raises two issues which merit some discussion: (1) Whether Mr. Wright's identification was tainted by his presence at the scene of the arrest; and (2) Whether a proper foundation was laid prior to admitting the pistol into evidence. We agree with the rulings of the lower court on both these questions and, therefore, affirm.
The defendant also questions the sufficiency of the evidence because friends and members of his family provided him with an alibi. On the basis of the evidence presented in this case, the jury was not acting improperly when it chose to disbelieve these witnesses for the defendant. See, e.g., Commonwealth v. Lees, 199 Pa. Super. 383 (1962).
The propriety of the "show-up" identification by Mr. Wright depends principally upon its proximity to the time and place of the crime. In Russell v. United States, 408 F.2d 1280 (D.C. Cir. 1969), the court pointed out that this procedure allows the police to promptly determine whether they may be taking the wrong man into custody. As the court indicated, such situations are "wholly distinguishable" from the procedure ruled constitutionally defective in Stovall v. Denno, 388 U.S. 293 (1967). In the instant case, the arrest was made near the scene of the crime and within forty minutes of its occurrence. The police could reasonably seek this identification while the robbery was fresh in the victim's mind. Especially in light of the good opportunity that the victim had to observe his assailant, we do not find the identification herein to be improper.
The defendant also contends that the court erred in allowing the Commonwealth to admit into evidence the .45 caliber pistol which was found under the car some fifteen minutes after the police left the site of the arrest. During that fifteen minute period the car was left unattended, therefor the defendant argues that a proper foundation was not laid. In Commonwealth v. Ford, 451 Pa. 81 (1973), the Supreme Court held that positive testimony linking the weapon to the crime is not required prior to its introduction into evidence. A lack of such testimony affects only the weight of the evidence, not its admissibility. See also Commonwealth v. Ross, 266 Pa. 580 (1920); United States v. Gordon, 455 F.2d 398 (8th Cir. 1972); United States v. Ramey, 414 F.2d 792 (5th Cir. 1969). In the instant case, Mr. Wright's testimony that the robber used a .45 caliber pistol in the hold-up, combined with the testimony that the weapon was found under the car in which the appellant had been riding only fifteen minutes after the police left the vehicle, constituted a sufficient foundation for admitting the pistol into evidence. The jury, in weighing the evidence, could consider the fifteen minute hiatus as an opportunity for someone other than appellant or his cohorts to dispose of the pistol in that fashion. The probability of that occurring was a problem for the fact-finder, not the court.
The judgment of sentence is affirmed.