source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    457 A.2d 909
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert LAWRENCE.
    Superior Court of Pennsylvania.
    Submitted May 5, 1982.
    Filed Feb. 4, 1983.
    Reargument Denied April 12, 1983.
    Petition for Allowance of Appeal Denied July 13, 1983.

      Steven H. Goldblatt, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    A. Charles Peruto, Jr., Philadelphia, for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

The Commonwealth has appealed from an order suppressing certain articles taken during a burglary on the ground that the police who seized the items had conducted an improper investigatory stop of the car where they were found.

The order of the trial court granting appellee’s motion to suppress the articles will substantially handicap the Commonwealth’s case, if not effectively terminate the prosecution. Therefore, this appeal is properly before our court. Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971).

At 3:50 a.m. on Tuesday, October 2, 1979, Officer Jeffrey Miller of the Philadelphia Police Department, while on patrol, observed a station wagon, being driven by appellee, about to leave the driveway at 3432 Warden Drive in the East Falls section of Philadelphia. Officer Miller was familiar on a personal and professional basis with both Warden Drive and the East Falls section of the city, having been born and raised in East Falls and having been assigned, as a police officer, for at least a two year period, to patrol that part of East Falls where Warden Drive is found. He drove past the address in question almost every day during that time period. When Officer Miller passed by 3432 Warden Drive in the early morning hours of October 2, 1979, he recognized the station wagon being driven by appellee as having been parked in the driveway on prior occasions. He also knew, because of his familiarity with the neighborhood, that appellee and his companion were not occupants of the residence located at 3432 Warden Drive. After Officer Miller had passed in his police car, appellee drove out of the driveway. Officer Miller followed the station wagon and subsequently stopped it. He then asked appellee, the driver of the vehicle, to produce an owner’s card for the station wagon. Neither appellee nor his passenger could do so. While the officer was questioning the men, he observed a television set, a clock and a glass jar of quarters in plain view on the car seats. It was these items that were suppressed by the trial court. Appellee was detained while the police checked the residence and learned from the occupants that their home had been burglarized.

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. On review, we are required to determine whether the record supports the trial court’s factual findings, and whether the inferences and legal conclusions drawn by the trial court from those findings are appropriate. We are to consider the testimony and evidence presented by the prosecution and that portion of the evidence presented by the defense that remains uncontradicted. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). Having applied this standard of review to the record in this case, we conclude that the trial court’s crucial finding of fact number eight (8) is not supported by the evidence in this case, and, therefore, that the trial court erred in suppressing the evidence.

In finding of fact number eight (8), the trial court stated that “[t]he only reason for the stop made by the arresting officer was that the station wagon was being operated by two Black males in an area he knew to be occupied by white people only.” (Emphasis supplied). Although the race of the appellee and his companion was a factor in Officer Miller’s decision to stop the station wagon, it was not “the only reason” expressed by him at the suppression hearing. On the contrary, Officer Miller testified as follows:

Based on my own personal knowledge of the East Falls area, based on my own personal knowledge of the 3400 block of Warden Drive, based on my own personal knowledge of the vehicle, of seeing it in and around the area, in and around the neighborhood, in a gas station, based on my knowledge of no black families residing in that area, based on it being 4 a.m. in the morning, I thought it might be somewhat suspicious and stopped this vehicle for investigation.

In fact, finding of fact number eight (8) is not only contradicted by the record, it is also contradicted by the trial court’s own findings one (1) through four (4), in which the other factors considered by the police officer prior to detaining appellee, were stated as factual findings.

It is our conclusion from a review of the record that the facts of this case, as found by the trial court, would lead a police officer reasonably to conclude, in light of his experience and knowledge, that criminal activity may be afoot. The late hour and the officer’s familiarity with the neighborhood, the occupants of the house and the particular vehicle led him reasonably to suspect that a theft of the vehicle might be in progress. Therefore, Officer Miller was justified in stopping and briefly detaining appellee for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such an intermediate response, in the absence of probable cause to arrest, has been approved by this Court. Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977). When neither appellee nor his companion could produce an owner’s card and the officer observed the items in the car, he had probable cause to arrest appellee. See Commonwealth v. Benson, 239 Pa.Super. 100, 361 A.2d 695 (1976).

There is no basis for suppressing the proceeds of a burglary observed in plain view after a proper investigatory stop of a vehicle. Therefore, the order suppressing this evidence will be reversed and the case remanded for trial.

Order reversed and case remanded for trial.

Jurisdiction is relinquished.


author: CAVANAUGH, Judge: JOHNSON, Judge,

text:
    457 A.2d 911
    COMMONWEALTH of Pennsylvania v. Herbert L. BRADLEY, John H. Burroughs, Thomas J. Buzzar, and Louis C. Stith, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1981.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Granted Sept. 2, 1983.

      A. Charles Peruto, Jr., Philadelphia, for appellants.
    Joseph Hylan, Assistant District Attorney, for Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   CAVANAUGH, Judge:

The issue raised in this appeal is whether the circumstances surrounding the trial judge’s sua sponte declaration of a mistrial reached the level of manifest necessity. Appellants argue that manifest necessity was not shown and that retrial of the appellants is therefore barred by the doctrine of double jeopardy. We agree, and therefore order that the appellants be discharged.

The appellants, prison guards at the State Correctional Institution at Graterford, were charged with various offenses arising out of an incident during which an inmate was severely beaten. The case was called to trial before the Honorable Horace A. Davenport and a jury. The Commonwealth called Earl Worthy, an inmate at the prison, as a witness. A luncheon recess interrupted Mr. Worthy’s direct testimony and Mr. Worthy was returned to the holding cell, or “bull pen”, on the ground floor of the Montgomery County Courthouse. During the luncheon recess, defense counsel, Mr. Peruto, had Mr. Worthy, with whom he was previously acquainted, taken to a private room where the two spoke for a few minutes. Before Court resumed for the afternoon, Mr. Worthy advised the district attorney of the interview and the district attorney in turn reported the private conversation to the Court. Judge Davenport conferred with counsel in chambers, at which time Mr. Peruto confirmed that he had spoken with Mr. Worthy. The Court then questioned Mr. Worthy about the conversation on the record, with the jury absent. The testimony, in relevant part, was as follows:

By The Court:

Q. Mr. Worthy, it has been reported to me by Mr. Schireson, the assistant district attorney, that during the lunch hour you were contacted in the bull pen by Mr. Peruto, that there was a conversation which took place down there. The essence of the conversation I will not go into as it was reported to me, but I want to ask you specifically for you to relate to the Court for the record exactly what took place.
A. Mr. Peruto requested to me, and I complied to his request. We had a previous acquaintance from a prior case, whereas he was indirectly involved as my attorney. What I mean by indirectly was he was attorney for someone, a co-defendant of mine. And we know each other from that acquaintance. And there was not anything discriminatory toward this case mentioned at that time.
Q. I want you to relate to me exactly what the conversation was which took place down in the bull pen.
A. The words, you mean?
Q. As close as you can recall.
A. Mr. Peruto asked did I intend to hurt him.
Q. Mr. Peruto said what?
A. He asked me did I intend to hurt him on this trial here. And I told him I would do what was necessary. And I think he asked me why. And I said that it was a matter of principle, according to my code of ethics, that I partake of this trial truthfully, and that I would.
However, I expressed my regrets that he was attorney for the opposition in this case.
And we spoke somewhat about the other case, you know, in which we was victorious. And it became plain, neither one of us was going to give any information regarding this case at hand. And Mr. Peruto just told me it wasn’t nothing personal.
Q. Mr. Peruto told you what?
A. There wasn’t nothing personal, but he was going to tear me down on cross-examination. That’s what he is supposed to do if he can. And that was the extent of the conversation.
Q. Was there any reference to any future activities on his part or on your part?
A. What do you mean?
Q. Was there any threat to do something in the future, any promise to do something in the future? Was this conversation and discussion in a conversational tone? Were there others present who heard it?
A. No, there was no one present but him and I. It was not a heated argument. We just sat and talked.
Q. I asked, was there any promise or threats.
A. There was no promises. There was no threats.
Q. Is what you have related the full and complete conversation which you had down there?
A. I recall Mr. Peruto saying that he paid his debts. And I suppose that would be determined—that could be determined in many respects.
Q. How did the phrase, he would pay his debts, come up?
A. To my recollection, I cannot adequately describe at what stage that came up.
Q. What did the phrase, “he pays his debts” mean to you?
A. Well, to me it means that if I was to become lenient in my testimony or somewhat helpful toward him that I would be reimbursed for my services. But that is not to say that’s what he meant. He could have meant something totally different.

Following Mr. Worthy’s testimony, the Court asked to see counsel in chambers, prompting the following exchange:

Mr. Peruto: Before we go in chambers, could I ask a question?
The Court: Mr. Peruto, I don’t think it would be appropriate under the circumstances in this proceeding.
The Witness: Excuse me, Your Honor. Did he just ask you could he ask me a question?
The Court: Yes.
The Witness: I may have made a mistake in something I said. I would appreciate if you would let him ask me the question, because I don’t want to incriminate Mr. Peruto. He should be given a chance to defend himself, if I said something wrong. I don’t have any objection to him questioning me.
The Court: Mr. Worthy, that may be correct, but the Court says there will be no questions asked.

The Court did confer with counsel in chambers and, after returning to the courtroom, stated that it was declaring a mistrial and that the case would be rescheduled for trial at a later date. The appellants’ subsequent Application to Bar Reprosecution was denied by the trial court and this appeal followed.

Pennsylvania Rule of Criminal Procedure 1118(b) provides that:

When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

Where the defendant does not consent to the declaration of a mistrial, retrial is barred by the double jeopardy clauses of The United States and Pennsylvania Constitutions unless manifest necessity is shown. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). In determining whether the circumstances surrounding the declaration of a mistrial in a given case bar reprosecution on the same charges, “we apply the standards established by both Pennsylvania and federal decisions.” Commonwealth v. Mitchell, 488 Pa. 75, 78, 410 A.2d 1232, 1233 (1980).

The “manifest necessity” standard dates back to 1824, when the United States Supreme Court stated that a trial judge may declare a mistrial only when, “taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” U.S. v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L.Ed. 165 (1824).

In a more recent case, the Supreme Court stated that “the discretion to discharge the jury before it has reached a verdict is to be exercised only in very extraordinary and striking circumstances, ____ For the prohibition of the Double Jeopardy Clause is ‘not against being twice punished, but against being twice put in jeopardy.’ ” Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963) (citations omitted).

Trial courts should be especially reluctant to declare a mistrial in cases where the defendant does not consent to such an action. As the Supreme Court stated in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971):

[WJhere the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his “valued right to have his trial completed by a particular tribunal”____ [TJhe defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.

400 U.S. at 484-85, 91 S.Ct. at 556-57. Thus if a defendant does not consent to the mistrial,

[TJhe Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings ____ [IJn the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society though the verdict of a tribunal he might believe to be favorably disposed to his fate.

United States v. Jorn, supra, 400 U.S. at 485-86, 91 S.Ct. at 557. See also Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4, cert. denied, 429 U.S. 867, 97 S.Ct. 178, 50 L.Ed.2d 147 (1976); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Stroup, 244 Pa.Super. 173, 366 A.2d 1248 (1976).

The Pennsylvania Supreme Court observed in Commonwealth v. Bolden, 472 Pa. 602, 641, 373 A.2d 90, 108-09 (1977) that:

The double jeopardy clause is not designed solely to preclude bad faith harassment of an individual by government prosecutors. It also serves ... “to protect the defendant from continued exposure to embarrassment, anxiety, expense, and restrictions on his liberty.” (Citation omitted).

A defendant’s right to have his trial completed by a particular tribunal merits constitutional protection because:

Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed.

Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978) (footnotes omitted).

Before a trial court can properly declare a mistrial sua sponte, it should consider whether there are any less drastic alternatives which would allow the trial to continue. Failure to consider alternatives before declaring a mistrial is grounds for barring retrial. United States v. Jorn, supra, Commonwealth ex rel. Walton v. Aytch, supra; Commonwealth v. Ferguson, supra; Commonwealth v. Dull, 257 Pa.Super. 192, 390 A.2d 777 (1978).

It is also well established that any doubt as to the existence of manifest necessity must be resolved in favor of the defendant. Downum v. United States, supra; Commonwealth v. Bycer, 485 Pa. 224, 401 A.2d 740 (1979); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976); Commonwealth v. Ferguson, supra; Commonwealth v. Carson, 259 Pa.Super. 183, 393 A.2d 778 (1978).

With these principles in mind, we turn to an examination of the circumstances in the instant case. The sua sponte declaration of a mistrial by the lower court was prompted by a “private conversation” between appellants’ counsel and a Commonwealth witness. The conversation took place during a lunch recess which interrupted the witness’ direct testimony. There is nothing per se improper about counsel having such a private discussion with a witness. There is nothing in the record to suggest that the witness had been instructed by the court not to talk to defense counsel during the break. The witness reported the conversation to the district attorney, who in turn reported it to the trial judge. Following an in-chambers conference with counsel, the trial judge, with the jury absent, questioned the witness about the conversation. The judge then declared a mistrial sua sponte because of his belief that defense counsel may have been guilty of tampering with the witness.

The trial judge states in his opinion that he questioned the witness “only because of the nature of the report of the interview.” Slip opinion at 2. The record does not indicate what the nature of the report was. The testimony of the witness on the record reveals only the rather ambiguous statement attributed to counsel that he “pays his debts.” Even the witness admitted that the statement “could be determined in many respects.” The court refused to permit defense counsel to question the witness about the accuracy of the statements attributed to him or the context in which they were made even though the witness expressed a desire to be cross-examined by defense counsel in case he (the witness) “said something wrong.”

Under these circumstances, we fail to see how the trial court could conclude that there was manifest necessity to grant a mistrial. Based on these scant facts and in the face of the court’s unwillingness to examine the issue in more depth, we do not believe that there was a basis for the court to conclude that counsel had been tampering with a witness. The lower court at this stage should have considered alternatives to aborting the entire trial. It is possible that the whole matter could have been cleared up if the court had allowed defense counsel to cross-examine the witness and establish the actual substance of the conversation and the context in which the allegedly incriminating statements were made.

Having leaped to the conclusion that there may have been tampering the court proceeded to declare a mistrial sua sponte and justified this decision on the basis that the possibility of tampering had so affected counsel’s ability to effectively represent his clients that a mistrial was necessary. We do not feel that under the circumstances such a conclusion was necessary, especially in view of the fact that neither the defendants nor their counsel were given an opportunity to respond to the court’s expression of concern or to exercise an intelligent decision to proceed even in the face of the court’s protective solicitude. In sum, we believe that the trial court, based on a communication from counsel for a litigant proceeded into a probe of a conversation between a witness and counsel, and then concluded on the basis of scant and ambiguous evidence that there may have been wrongdoing. The effect of this hasty conclusion was aggravated by the sua sponte declaration of a mistrial in the face of clear alternatives.

In its opinion, the trial court likens the circumstances in this case to those of Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), in which the Pennsylvania Supreme Court permitted retrial following a mistrial which was granted when it was revealed that statements made by a surprise Commonwealth witness implicated defense counsel in a conspiracy to murder the chief prosecution witness. The lower court claims that here, as in Bolden, a conflict of interest between appellants and their counsel arose regardless of the truth of the allegations because counsel could not effectively cross-examine the witness for fear of exposing the allegations. The situation in this case, however, is quite different from that in Bolden. In Bolden the witness was expected to testify about the alleged plot to murder a witness and it was foreseeable that defense counsel’s alleged participation in the conspiracy would arise. In the instant case, the conversation which defense counsel had with the witness during the lunch recess was totally unrelated to the events about which the witness was testifying. Logic does not support the lower court’s conclusion that defense counsel would be unable to “effectively cross-examine” the witness for fear of exposing the allegations of misconduct on his part. On the contrary, it is hard to imagine how the subject of the private conversation could arise on direct or cross-examination.

The lower court emphasized its concern for defense counsel’s ability to effectively represent his client where it stated in its opinion that “[wjhen defense counsel is no longer qualified to represent his clients’ best interests, protection of the defendants’ rights becomes the court’s responsibility.” Slip opinion at 2. The court ignored, however, the appellants’ “right to have [their] trial completed by a particular tribunal.” United States v. Jorn, supra, 400 U.S. at 484, 91 S.Ct. at 557. It was insensitive to the fact that defendants have “a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial.” Id. at 485, 91 S.Ct. at 557. Moreover, as the Supreme Court has stated, “[r]eprosecution after a mistrial has unnecessarily been declared by the trial court obviously subjects the defendant to the same personal strain and insecurity regardless of the motivation underlying the trial judge’s action.” Id. at 483, 91 S.Ct. at 556.

Because the trial court did not consider reasonable alternatives to a sua sponte declaration of mistrial, we feel that retrial of these appellants would violate their double jeopardy rights. The United States Supreme Court and Pennsylvania appellate courts have reached the same conclusion in many cases and have barred retrial because the trial court did not consider possible alternatives or because it acted too hastily in declaring a mistrial before ascertaining that it was necessary. See, e.g., United States v. Jorn, supra; Commonwealth v. Bartolomucci, supra; Commonwealth ex rel. Walton v. Aytch, supra; Commonwealth v. Ferguson, supra; Commonwealth v. Dull, supra; Commonwealth v. Carson, supra; Commonwealth v. Stroup, supra. See also, Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (retrial following the sua sponte declaration of a mistrial was permitted only because the lower court did make an effort to come up with alternatives before declaring a mistrial).

Having reviewed the record in this case in light of the manifest necessity standard, and keeping in mind the rule that “any doubt about the propriety of the trial court declaring a mistrial sua sponte must be resolved in favor of the defendant,” Commonwealth v. Bycer, supra, 485 Pa. at 227, 401 A.2d at 742, we conclude that retrial in this case would constitute double jeopardy.

Order denying Application to Bar Reprosecution reversed. Appellants shall be discharged.

JOHNSON, J., files dissenting opinion.

JOHNSON, Judge,

dissenting:

I am constrained to dissent. I do not disagree with Judge Cavanaugh’s accurate analysis of the law of double jeopardy. I understand that case law in this jurisdiction has not provided us with precedent for finding manifest necessity in such circumstances as those of this case. However, it is our duty as an appellate court to apply the law, in this case the law of double jeopardy, not only to protect a defendant’s right to have his trial completed by a particular tribunal and to protect defendants from the harassment of multiple prosecutions, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543, (1971), but also to guarantee the public’s interest in fair trials designed to end in just judgments. See Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), quoted in Jorn, supra, 400 U.S. at 480, 91 S.Ct. at 554-55, 27 L.Ed.2d at 554.

My disagreement with the majority view here involves its analysis of the reaction of the trial court to the situation. I disagree that the court “leaped to the conclusion” that there may have been tampering. My view is that the appellate court should give more weight to the trial court’s exercise of discretion when the trial court was faced with an unexpected situation which involved perhaps illegal or unethical, but at least questionable, conduct by defense counsel. The trial court’s response was admittedly swift, but not arbitrary or capricious. The majority opinion chastises the trial court for not considering reasonable alternatives to a sua sponte declaration of mistrial, yet does not suggest what these alternatives might be, other than to have permitted defense counsel to cross-examine the witness. The reason the trial court gave for choosing not to permit this was that it decided that such a line of inquiry would compromise defense counsel’s advocacy of his client’s cause, turning it into a situation of self-exoneration for defense counsel. In other words, the trial court did consider an alternative, and rejected it.

A further reason which the trial court gave for deciding to end the trial at this stage was the likelihood of a subsequent appeal requesting a new trial on the grounds that defense counsel, trying a case with the shadow of alleged impropriety looming over him, was unable to try the case effectively, and thus deprived the defendants of the effective assistance of counsel.

I see this situation as one where the defendant’s valued right to have his trial completed by a particular tribunal is subordinate to the public’s interest in fair trials and just judgments. See United States v. Jorn, 400 U.S. at 480, 91 S.Ct. at 554-55, 27 L.Ed.2d at 554.

I would affirm the denial of the application to bar reprosecution, on the grounds that in the untoward circumstances of the case, involving possibly highly improper behavior of defense counsel, the trial court was faced with manifest necessity to declare a mistrial sua sponte, and that the double jeopardy bar to retrial is inapplicable.

      . There is a jurisdictional issue present in this appeal which we feel compelled to address, although it was not raised by either party. The record and the briefs suggest that this appeal was taken from the order entered April 2, 1980, declaring a mistrial and ordering that the case be rescheduled for trial. Such an order is not a final, appealable order. There was, however, an Application to Bar Reprosecution filed on April 11, 1980, which was denied on April 14, 1980. The notice of appeal was filed April 29, 1980.
      The normal procedure in a case of this type is for the defendant to file a pre-trial motion to dismiss the indictment on double jeopardy grounds. An order denying such a motion is an appealable order. Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). In the interest of judicial economy, we will consider the Application to Bar Reprosecution to be the equivalent of a motion to dismiss the indictment, and we will treat this appeal as having been taken from the denial of the Application to Bar Reprosecution.

      . Reliance on Bolden would be misplaced at any rate because in Bolden the defendant requested a mistrial. It was not declared by the court sua sponte. A request or consent by the defendant to a mistrial normally removes any bar to retrial. Commonwealth v. Bartolmucci, supra, 468 Pa. 347, 362 A.2d at 238.

      . Commonwealth v. Bradley et al., No. 4982-79, slip op. August 15, 1980 at 8, and N.T. April 2, 1980 at 7 (C.P. Montgomery County, 1980).

      . Id. Slip op. at 9, N.T. at 7.


author: BECK, Judge: LIPEZ, Judge,

text:
    457 A.2d 918
    COMMONWEALTH of Pennsylvania v. Oscar Leroy HEATON, Appellant. COMMONWEALTH of Pennsylvania v. Stevenson Evans SAMPLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1981.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Granted June 24, 1983.

      Charles R. Rosamilia, Jr., Public Defender, Lock Haven, for appellants.
    Richard Saxton, Sp. Prosecutor, Lock Haven, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   BECK, Judge:

Appellants, Stevenson Evans Sample and Oscar Leroy Heaton, were tried together for three counts of burglary, two counts of criminal conspiracy and one count of criminal mischief. A jury found each defendant guilty on all counts. After the denial of post-trial motions, appellant-Sample was sentenced to three concurrent terms of from five to fifteen years incarceration; appellant-Heaton was sentenced to three concurrent terms of from seven to fifteen years. Appellants, although represented by separate attorneys at trial, were both represented on appeal by appellant-Heaton’s trial counsel, and they allege identical claims on appeal.

Appellants argue initially that an inference of prior criminal behavior was improperly raised at trial and that the trial court erred in refusing to grant their motions for a mistrial. Finding that claim to be meritorious, we reverse judgments of sentence and remand for a new trial.

According to appellants, the first time an inference of prior criminal activity was raised occurred when appellant-Heaton’s trial counsel was cross-examining Chief Conklin of the Castanea Police Department about the absence of physical evidence linking appellants to the first of the three burglaries:

Q. Did you find anything at all on the premises which would tie in either the Defendant Sample or the Defendant Heaton with this crime?
A. No.
Q. You did not?
A. You mean by physical evidence?
Q. Any kind of physical evidence; any fingerprints; anything?
A. If I may state, I called in a State Trooper Hunter from Montoursville. He is a Crime Lab man. He brought up a portable crime lab. He took prints. The prints turned out that there was gloves used. We didn’t come up with any prints.
Q. You mean there was some prints on the premises with gloves?
A. Yes, gloves.
Q. Do you have any knowledge if the person using those gloves was the person that burglarized that building or not? It could have been a patron in there with a pair of gloves on, in other words, somebody in the fire hall?
A. It’s kind of hard to say, one way or the other.
Q. You do not know?
A. I don’t know.
Q. Do you have any personal knowledge yourself at this point that anything you found in your investigation of these premises that would tie these two defendants in with this crime?
A. (No response.)
Q. There were no prints, I take it, right?
A. Right.
Q. Was there any other evidence? Were there clothes found? Were there things like that?
A. No, except for the defecation which is a sign of a person, almost like a painter when he signed it. A person gets excited, he can’t help himself and has to go relieve himself.
Q. You are saying that is a sign of something?
A. That’s a sign of something that’s been found at a couple other of the burglaries that
MR. ROSAMILIA: Your Honor, I would object to this testimony.[] I would ask that we approach the Bench at this point.
THE COURT: No, you have asked the question, and you have to go- with whatever—I do not see what effect it would have. I will instruct the witness not to discuss any other offense.
THE WITNESS: Okay. Sorry, your Honor.
THE COURT: You opened the door with your question. BY MR. ROSAMILIA:
Q. Did you find any hard evidence, any hard and fast evidence, anything to tie these two gentlemen in?
A. Just what I stated.

Notes of Testimony (“N.T.”) at 28-30 (emphasis added). Appellants also point to later redirect examination of another police officer by the prosecutor in this case which they argue further raised the implication of prior criminal activity by appellants. The prosecutor asked Police Officer Walakavage of the Lock Haven Police Department why he told Detective Eichenlaub of his Department that he had observed appellants in a bar on the morning of September 14, 1979—the morning the burglaries allegedly occurred:

BY MR. SAXTON:

Q. Officer, Mr. Roberts asked you why you told Detective Eichenlaub the next day that you had seen them in there the day before. Why did you tell him?
A. Because Detective Eichenlaub told me of the burglary at the Castanea Fire House and the defecation they found on the floor, and I stated that I seen Oscar Heaton and Steven Sample
MR. ROSAMILIA: Objection, your Honor.
MR. ROBERTS: Objection. I do not see what relevance that has.
THE COURT: I do not know why you are asking the question. We are going to sustain the objection and instruct the jury to disregard the answer.
MR. SAXTON: He asked him why he told him.
THE COURT: I know, but I do not think you can pursue it and the Court be allowed to admit it into evidence.
MR. SAXTON: That is all.

N.T. at 72-73 (emphasis added).

Defense motion for a mistrial was denied.

Appellants acknowledge that no further inquiry along these lines was permitted, but argue that the inference of prior criminal behavior had been raised. Appellants cite Commonwealth v. Washington, 488 Pa. 133, 138, 411 A.2d 490, 492 (1979), reargument denied, March 3, 1980, for the proposition that “in determining if the introduction of the challenged testimony constitutes reversible error, the controlling question is whether the jury could reasonably infer therefrom that the accused had engaged in other unrelated criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (197[2]).”

We are convinced that the jury reasonably could have construed the allusions to the feces left at the scene of the crime as linking appellants to another crime or crimes. We are confident that the jury grasped the implication of the above quoted testimony that in prior incidents either one or both of the appellants had left similar evidence at a crime scene or scenes.- This we condemn for it raises a serious doubt in our minds as to an improper basis for the jury’s verdicts. This Court stated in Commonwealth v. Boulden, 179 Pa.Super. 328, 332, 116 A.2d 867, 869 (1955) the general rule for the admissibility of evidence of prior criminal conduct:

The general rule is that “on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.” 22 C.J.S. Criminal Law § 682. Shaffner v. Commonwealth, 72 Pa. 60 (1872); Snyder v. Commonwealth, 85 Pa. 519 (1877); Swan v. Commonwealth, 104 Pa. 218 (1883); Commonwealth v. Saulsbury, 152 Pa. 554, 25 A. 610 (1893); Commonwealth v. House, 223 Pa. 487, 492, 72 A. 804 (1909); Commonwealth v. Shanor, 29 Pa.Superior Ct. 358, 362 (1905).
In Shaffner v. Commonwealth, supra, page 65 it was said:
“If the evidence (of an offense not charged) be so dubious that the judge does not clearly perceive the connection (with the crime charged), the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.” []

The Commonwealth counters that in evaluating appellant’s argument emphasis should be given to the fact that comments of which they complain were elicited by appellants’ counsel.

In concluding that the identity of the questioner is not relevant in evaluating the prejudicial impact of a reference to prior criminal activity, Judge Spaeth has stated and we agree:

An innocent question may elicit a response so prejudicial as to deny an accused the right to a fair trial, and this is so whether the innocent question is asked by the prosecutor, Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (inference of criminal activity drawn despite fact that purpose of prosecutor’s question was to show defendant had fled after murder), or by the accused’s own counsel, Commonwealth v. Wetzel, 276 Pa. Superior Ct. 445, 419 A.2d 541 (1980) (inference of criminal activity drawn despite the fact that questions asked by defense counsel and not prosecutor).

Commonwealth v. Bowermaster, 297 Pa.Super. 444, 456, 444 A.2d 115, 121 (1982) (SPAETH, J. concurring and dissenting).

The Commonwealth further argues, citing Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979), that any error in this regard was harmless. The Weakland court enunciated the test for finding error in this context to be harmless:

Where ... this Court is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless. Commonwealth v. Story, 476 Pa. 391, 38[3] A.2d 155 (1978). In the instant case, although Trooper Fedin’s testimony supported an inference that appellant had previously engaged in criminal activity, that inference was innocuous in view of the great volume of other evidence presented at trial and was, therefore, harmless error.

Id., 273 Pa.Superior at 369, 417 A.2d at 694. We are not convinced that the error did not contribute to the verdict. In the instant matter, no physical evidence was introduced linking appellants to the burglaries; the only evidence that inculpated appellants was the testimony of Kathryn Lamey who testified that she had been an accomplice in the burglaries and who had been accepted into the Accelerated Rehabilitative Disposition Program contingent upon, inter alia, her offering testimony in the prosecution of appellants. The statements raising the inference of prior criminal behavior could have weighed heavily upon the minds of the jurors and contributed to their verdict.

Judgments of sentence reversed and new trial granted.

LIPEZ, J., filed a dissenting opinion.

LIPEZ, Judge,

dissenting:

It is ironic indeed that the defendants are granted new trials by reason of their own self-inflicted wounds in opening up the very area which the majority considers prejudicial. I dissent.

It is important to bear in mind that both defendants were charged with three burglaries, all of which were consolidated for trial without objection. According to the testimony of their accomplice, Kathryn Lamey, all three offenses occurred on September 14, 1979 within the time frame of about seven hours—the Castanea Fire Hall, around 2:00 a.m., the Winner Packing Plant at 3:00 a.m., and the Womeldorf cabin around 9:00 a.m. The defendants and Kathryn Lamey were seen together in a tap room around 1:30 a.m. that same morning by Officer Walakavage. Kathryn Lamey, who drove the car to all three burglaries, implicated both defendants.

Officer Conklin, a Commonwealth witness, had testified as to his physical findings at the Castanea Fire Hall. It was during the cross-examination by defendant Heaton’s trial counsel, and upon his persistent questioning in an obvious effort to obtain from the witness some exculpatory statements, that the witness spoke about the defecation as fully set forth in the majority opinion. No objection was made by either defense counsel. Counsel then invited an explanation as follows:

Q. Are you saying that is a sign of something?
A. That’s a sign of something that’s been found at a couple of other of the burglaries that ...

Then before the answer was completed there was. an objection by defense counsel and there was no further explanation by the witness. Undeterred, counsel continued his cross-examination as follows:

Q. Did you find any hard evidence, any hard and fast evidence, anything to tie these two gentlemen in?
A. Just what I stated.
Q. So you do not know of anything else to tie these gentlemen into the scene of the crime?
A. No.

The record clearly shows therefore that the answer by the witness as to the defecation was in response to defense counsel’s question; that there was no objection to the answer; that the witness’s explanation as to the defecation was also in response to counsel’s invitation; and that there was no request for a mistrial.

It is a fundamental proposition that the failure to assert promptly and specifically an objection is a waiver. McCormick, Evidence (Cleary, 2d Ed.) § 52. This evidence was therefore in the record and became a part of the case against the defendant, as any other evidence. Carl v. Kurtz, 255 Pa.Super.Ct. 198, 386 A.2d 577 (1978); McCormick, supra, § 54. The explanation having been given at defendant’s request, he must be held to the consequences of his choice. See Commonwealth v. Stakley, 243 Pa.Super.Ct. 426, 365 A.2d 1298 (1976). McCormick, Evidence, supra, § 57.

As to the other line of testimony referred to by the majority, Officer Walakavage had testified on direct examination, as noted above, regarding the presence of the defendants and Kathryn Lamey at a bar early in the morning prior to these burglaries. Defendant Sample’s counsel, in his cross-examination, developed the fact that this witness on the following day commented to Detective Eichenlaub that the defendants, Oscar Heaton and Steven Sample, and Kathryn Lamey were in the bar. Defense counsel continued his cross-examination as follows (N.T. 66):

Q. Why did you tell Detective Eichenlaub the following morning?
A. The following afternoon.
Q. Yes.
A. Because of the burglaries we had.

Thereafter, on redirect examination, the prosecutor asked the same question as to why he told Detective Eichenlaub the next day. No objection was made to the question. The witness, as noted in the majority opinion, then replied: “Because Detective Eichenlaub told me of the burglary at the Castanea Fire House and the defecation they found on the floor, and I stated that I had seen Oscar Heaton and Steven Sample____” Further answer was cut off by the objection of defense counsel, and the sustaining of the objection by the court. Defense counsel then moved for a mistrial which was refused.

Defense counsel should have moved promptly to object to the question as soon as it was asked and before the answer was given, especially because he had been forewarned about the possible nature of the answer from his own, as well as his co-counsel’s, cross-examination. Having failed to do so, it constituted a waiver. Evans v. Otis Elevator Co., 403 Pa. 13, 26-27, 168 A.2d 573, 579-80 (1961); Kohn v. Shegda, 5 D & C 3d 526 (1978); McCormick, Evidence, supra, § 52.

Nevertheless, I see nothing in this answer to raise any new implication of other or prior criminal activity. He simply reiterates what is already in the record, viz. the defecation found in the Castanea Fire Hall and the presence of the two defendants, Heaton and Sample, with Kathryn Lamey some hours before the first burglary. Nothing in the redirect examination is said about any other burglaries. Any implication of the presence of feces at the other burglaries (and these “other burglaries” were never clarified and could reasonably apply only to those involved in the three charges for which the defendants were on trial) arose because of the cross-examination by both defense counsels thereby opening the door to further probing by the Commonwealth. Commonwealth v. Stakley, supra. See Commonwealth v. Wright, et al., 228 Pa.Super.Ct. 251, 323 A.2d 389 (1974) (defendants charged with robberies; there was no error in refusal to grant mistrial because of admission of restitution offer by defendants, particularly where previous evidence as to admissions made by defendants during the restitution offer had been admitted without objection).

In any event, there is no per se rule requiring a new trial for every reference to prior criminal conduct. Commonwealth v. Bowermaster, 297 Pa.Super.Ct. 444, 444 A.2d 115 (1982) (majority opinion). The decision as to the grant of a mistrial rests in the sound discretion of the trial judge, and will not be reversed absent a flagrant abuse of discretion. Commonwealth v. Stokes, 279 Pa.Super.Ct. 361, 421 A.2d 240 (1980).

I conclude therefore that the references to feces was induced by the defense questioning who must bear the responsibility for its introduction into evidence; that it had at most a minimal impact on the jury; and that the trial judge’s action in refusing a mistrial was well within the limits of his sound discretion, and certainly well removed from flagrant.

I would affirm the judgments of sentence.

      . Appellants present five other allegations of error. We find the opinion of the lower court supporting the denial of post-trial motions to have adequately answered those claims, and we need not address them here.

      . The dissenting opinion places considerable emphasis upon the timing of defense counsel’s objections both to this testimony and to the subsequent testimony which we herein find to have raised an inference of prior criminal activity. We disagree with the dissent's conclusion that these objections were not made in timely fashion, and instead conclude that in both instances counsel objected as soon as the grounds for those objections became clear. Prior to the objected to statements, it was not self-evident that the witnesses would allude to this prior criminal activity. McCormick, Evidence (1972, 2d.Ed.) § 52.

      . Appellants contend that the two witnesses who referred to prior criminal activity should have known better since they were both police officers and Commonwealth witnesses. They analogize the instant matter to Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) where the Pennsylvania Supreme Court stated that when the witness is an investigator of the District Attorney’s office, “it is a reasonable assumption that he should have known not to make such statements [suggesting prior criminal activity].” Id., 488 Pa. at 138, 411 A.2d at 492. We find the preceding reasoning to be persuasive.

      . It is well-settled, of course, that “evidence of ... prior criminal conduct [is] admissible to establish ... identity by showing the similarity between the two incidents. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975).” Commonwealth v. Shively, 492 Pa. 411, 414, 424 A.2d 1257, 1258 (1981). The Shively court quoted the McCormick treatise to illustrate this exception to the above general rule:
      As McCormick has stated, evidence of prior crimes is admissible: "... to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here, much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature." McCormick, Evidence, § 190 (1972 2d ed.) (Emphasis added) (Footnotes omitted).

        Id., 492 Pa. at 415, 424 A.2d at 1259. We note that the Commonwealth did not contend at trial that the above testimony was admissible because it fell within this narrow exception, and there is no evidence of record which would support such an identical modus operandi between the burglaries for which appellants were charged and prior burglaries which would establish the identity of appellants as the burglars in the instant matter. Indeed, the Commonwealth introduced no evidence that appellants had committed the other burglaries.

      . We note that while the first reference to prior criminal behavior was offered in response to a question from defense counsel, the second was offered in response to the prosecutor’s question, albeit a follow-up to a defense question on cross-examination. It appears clear that the prosecutor's question was aimed directly at eliciting the prejudicial response.
      The trial judge refused to sustain a defense objection to the first reference because it was offered in response to a question from defense counsel. A defense objection was sustained, however, after the second reference to prior criminal activity. We note also that a curative instruction was provided.
      While the Pennsylvania Supreme Court in Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981) held that a curative instruction may eliminate the taint arising from a reference to prior criminal conduct, the Richardson court gave great weight to the fact that the Commonwealth sought to prevent the remarks raising the inference of prejudice. In the instant matter there were no such efforts of record made by the Commonwealth to preclude the offering of these remarks by its witnesses. To the contrary, it appears clear that the Commonwealth purposefully elicited the second reference to prior criminal activity. Moreover, we find that the curative effect of the instruction in this matter was far outweighed by the prejudicial impact of the above remarks.

      . Flagrant is defined as "glaring, notorious, scandalous.” 36 A.C.J.S. p. 745; "conduct which is shocking or outrageous.” Caldwell v. England, 200 A.2d 376 (1964) (D.C.App.).

      . "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion ... the judgment exercised is manifestly unreasonable—discretion is abused.” Pokrzywnicki v. Kozak, Jr., et al., 353 Pa. 5, 44 A.2d 247 (1945).

      . In view of my conclusion I do not discuss the admissibility of the • controverted evidence under any other theories.


author: MONTEMURO, Judge: CERCONE, President Judge,

text:
    457 A.2d 925
    COMMONWEALTH of Pennsylvania v. Charles THOMPKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1982.
    Filed Feb. 25, 1983.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Sarah B. Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, P.J., and CAVANAUGH, ROWLEY, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   MONTEMURO, Judge:

Following a jury trial, appellant was found guilty of burglary, robbery, and conspiracy. Post-verdict motions were denied by the learned and distinguished trial judge, Honorable Angelo A. Guarino, and appellant was sentenced to a term of ten (10) to twenty (20) years imprisonment on the robbery conviction, ten (10) to twenty (20) years concurrent imprisonment on the burglary conviction and five (5) to ten (10) years concurrent imprisonment on the criminal conspiracy conviction. Appellant raises several allegations of trial error on this appeal. We find no merit in any of these issues and accordingly affirm.

On the evening of October 31, 1977, Mrs. Ella Woodley, 72 years of age, allowed three young black men into her house. She initially permitted them to enter her home because she recognized John Plummer, one of appellant’s codefendants. Immediately after the entry, the men announced “this is a stick-up.” One of the men grabbed Mrs. Woodley, and told her that if she made a noise he would hit her, and the other two took various personal items from the house. They then locked Mrs. Woodley in a powder room in the basement and left. Approximately a half-hour later, she freed herself and called the police. The police, after receiving a description of the hold-up men from Mrs. Woodley, brought several black males back to her residence. She identified two of them as the perpetrators of the crime.

Appellant initially contends that a Commonwealth petition for an extension of the Rule 1100 rúndate was improperly granted and that he, therefore, should be discharged. The rúndate was May 1, 1978, and the trial was first scheduled for February 28, 1978. The trial was postponed until April 10, 1978 at the request of co-defendant’s counsel. Although Mrs. Woodley had told an assistant district attorney on the telephone that she would appear at trial, she, nevertheless, did not appear. A bench warrant was issued for her the following day. An investigatory detective discovered that she was in North Carolina attending a funeral and would return on April 22, 1978. The detective again tried to contact her at her residence on April 24, but was told that she had not as yet returned. The detective contacted the post office, the utility company and neighbors and ascertained that Mrs. Woodley still lived at the Philadelphia address. The Commonwealth filed a petition on April 27, 1978, for an extension of the rúndate alleging due diligence in attempting to bring appellant to trial. The issue therefore is whether the Commonwealth proved due diligence at the extension hearing held on April 28, 1978.

The Commonwealth has the burden of proving due diligence by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). When the Commonwealth seeks an extension of the rúndate to secure the presence of a missing witness, the test is whether the methods of procuring the witness were reasonable under the circumstances of the case at that time. Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981). It is not necessary that all methods be exhausted. Commonwealth v. Long, id. From the above recitation of the circumstances surrounding the extension of the trial date, it is clear that the Commonwealth made more than a reasonable effort to produce Mrs. Woodley before May 1, 1978. The trial court was therefore correct in concluding that the Commonwealth was duly diligent and in consequently granting the extension.

Appellant next contends that the trial court erred at the suppression hearing by denying appellant’s request to produce the complaining witness to testify concerning probable cause for the arrest and the on-the-scene identification . Appellant alleges that the presence of the complaining witness is necessary to effectively determine the propriety of the on-the-scene identification. Furthermore, he contends that under Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), the presence of the complaining witness is mandatory regardless of the quantity and quality of the other testimony produced at the hearing.

In Commonwealth v. Lee, id., the court stated:

Here, the Commonwealth’s failure to have the complainant testify, not only concerning her observation of her attacker, but also concerning her own view of the identification procedure, left the hearing judge without evidence essential to the issue of admissibility. Accordingly, the Commonwealth failed to meet its burden of proof. Id., 262 Pa.Superior at 288, 396 A.2d at 758.

The court, after deciding that the trial court erred in denying the suppression motion, then proceeded to justify the admissibility of the testimony relating to the on-the-scene identification by an examination of the entire record. The court, after concluding that the identification was proper, continued,

Our decision here to decide the admissibility of the identification on the basis of a review of the entire record should not be understood as meaning that we shall undertake such a review in another case ... In deciding admissibility, the hearing judge must hear testimony of the identifying witness; if the Commonwealth fails to produce the witness, the identification should be suppressed. Id., 262 Pa.Superior at 289, 396 A.2d at 759.

The Lee court, while deciding the case on another ground, enunciated a per se rule as to the production of the identifying witness. That rule places the burden on the Commonwealth to produce that witness and if they fail to so produce, then the identification should be suppressed.

The Commonwealth contends that the relevant language in Lee is dictum because the case was decided on other grounds. We disagree with this contention, but decline to follow the dictates of Lee.

Today we hold that the presence of an identifying witness at a hearing to suppress a pre-trial on-the-scene identification is not mandatory. The per se rule enunciated in Lee is therefore overruled.

Even though the observations of an identifying witness are important considerations at a suppression hearing, this testimony is not constitutionally mandated:

In essence, what the Stovall due process right protects is an evidentiary interest ... It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness—an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and unlike the presence of counsel, is not a factor that goes to the very heart—the “integrity” of the adversary process.

Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140, 153 (1977).

Finding no constitutional mandate for the presence of the identifying witness, we next turn to the ability of the Commonwealth to meet its burden at the suppression hearing without producing that witness. The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive. Manson v. Brathwaite, supra. The following factors are to be taken into consideration:

... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson v. Brathwaite, supra at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154.

In the case at hand, the facts brought out at the suppression hearing show that the evidence of the on-the-scene confrontation between appellant and his victim, and her identification of him at that time is sufficiently reliable to support the trial court’s conclusion. The identifying witness viewed appellant inside her home for a period in excess of ten minutes. She gave a detailed description of appellant and two accomplices. Appellant was brought back to the scene within an hour of the incident. Not only did she identify appellant, but she noted that he had exchanged coats with one of his co-conspirators. She picked out two men, and exonerated two others.

Further, whatever suggestiveness inhered in the procedural aspects of the pre-trial identification clearly did not outweigh its reliability. The record indicates no element of unfairness. Appellant was free to cross-examine the police officers and to take the stand to dispute this testimony. Without any indicia of unfairness, we conclude that the suppression motion was properly denied.

Appellant next contends that the trial court erred in failing to charge the jury according to Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). Kloiber stands for the proposition that:

... where a witness is not in a position to clearly observe the assailant or he is not positive as to identity, or his positive statements as to identity are weakened by qualifications or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the court should warn the jury that the testimony must be received with caution. Id., 378 Pa. at 424, 106 A.2d at 826-27.

At trial, Mrs. Woodley testified that she positively identified two men on the night of the incident but could not testify to a certainty that appellant was one of the men she had previously identified. She stated that the man she had previously identified had different facial hair. The thrust of her testimony indicated that she was having problems remembering the incident.

We first note that a trial judge need not give an applicable charge verbatim. Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977).

In Commonwealth v. Boone, 286 Pa.Super. 384, 428 A.2d 1382 (1981), our court was faced with a similar allegation concerning a defective Kloiber charge. In that case, the court upheld the lower court charge which, when viewed on a whole, substantially, covered the substantive provisions of Kloiber.

The identification charge in the case at hand was proper for these same reasons. The trial judge, in an extensive and scholarly charge, instructed the jury that as a statement of fact, there was no in-court identification by Mrs. Woodley. They were therefore instructed that they could only use evidence of the previous identification. The judge then reiterated the various factors that the jury should consider in determining the accuracy of an out-of-court identification. Therefore, we conclude that, while the trial judge did not use the exact wording of Kloiber, his instructions actually exceeded the requirements of that case.

Appellant contends that the trial judge committed an abuse of discretion in interfering with counsel’s examination of defense witness Russell Kolim. Mr. Kolim was a private investigator who sought to testify concerning a conversation he had with Mrs. Woodley. We find this claim wholly without merit.

In Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970), the court stated, “It is always the right and sometimes the duty of a trial judge to interrogate witnesses, although, of course, the questioning from the bench should not show bias or be unduly protracted.” Id., 438 Pa. at 63, 265 A.2d at 107, quoting from Commonwealth v. Watts, 358 Pa. 92, 56 A.2d 81 (1948). In the case at hand, the trial judge properly intervened to clarify the responses of Mr. Kolim for the jury. The sought after testimony was eventually elicited and we see no prejudice resulting from the guidance of the trial judge. We conclude that there was no abuse of discretion.

Appellant lastly argues that the trial judge erred in not charging on Count Two of Bill of Information 816, which charged appellant with robbery, alleging that appellant threatened the crime of aggravated assault during that robbery. This charge was not necessary. The Commonwealth never moved to trial on that Count of the Information. We fail to see how appellant could be prejudiced when an additional felony was omitted from the jury’s consideration. There was no error.

For the foregoing reasons, Judgment of Sentence is affirmed.

CERCONE, P.J., files dissenting opinion.

CERCONE, President Judge,

dissenting:

I dissent.

The majority holds (1) that the presence of the sole identifying eye-witness at a hearing on a motion to suppress a pre-trial on-the-scene identification is not mandatory, (2) that the absence of such a witness does not alone warrant suppression of the witness’s identification, and (3) that a third party, in this case,' police officers, who were not eye-witnesses, may testify as to the sole eye-witness’s statement of identification. Because I feel that fundamental fairness under due process guarantees requires the presence of such a witness, and especially in this case since the absent eye-witness was the sole witness against appellant, I would order a new suppression hearing and trial, if necessary, in compliance with Commonwealth v. Lee, 262 Pa.Superior Ct. 280, 396 A.2d 755 (1978). Identification testimony offered by officers at ¿ suppression hearing on the basis of what they learned from an absent and sole eye-witness is hearsay and, under the dictates of fairness, inadmissible as evidence.

An accused person is entitled to a pre-trial evidentiary hearing to determine the admissibility of pre-trial identifications. Commonwealth v. Lee, supra. At the suppression hearing, the burden of the production of evidence is on the Commonwealth. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). As this court said in Commonwealth v. Perdie, 249 Pa.Superior Ct. 406, 409, 378 A.2d 359, 361 (1977), citing Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974):

Evidence of an identification should not be received at trial if the circumstances of the pre-trial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification. (citations omitted.) However, absent some special elements of unfairness, we do not believe that prompt on-the-scene confrontations fall within this ambit of suggestiveness.

The police are not competent to testify for an absent sole identifying witness and any such procedure is replete with the danger of the uncertain premise of unsubstantial identification. As our Supreme Court has said,

[I]t may be that the procedure used by the police was conducted with such fundamental unfairness as to result in a deprivation of due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967 [18 L.Ed.2d 1199] (1967). This is a recognized ground of attack, independent of any right of counsel claim. In resolving this question, all of the circumstances must be considered and the test is whether or not ‘the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification... ’ as to constitute prejudicial unfairness. Stovall v. Denno, supra. Commonwealth v. Marino, 435 Pa. 245, 253, 255 A.2d 911, 916 (1969).

In essence, the reliability of the confrontation is what must be determined by the suppression court. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Thus, in ascertaining the reliability of the confrontation procedure, reviewing courts have placed great emphasis on the testimony of an identifying witness as part of the Commonwealth’s burden.

In Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974), the court found the on-the-scene confrontation to be reliable such that it could be introduced at trial. The defendant was apprehended near the scene of a robbery by police responding to a broadcast. He was driven two blocks so that the victim-cabdriver could observe him. Placing great weight on the cabdriver’s suppression testimony that “They asked me were these the two fellows. And I said, yes,” the court affirmed the denial of suppression.

In Commonwealth v. Alvin, 257 Pa.Superior Ct. 290, 390 A.2d 827 (1978) this court found that the trial court erred during the suppression hearing in refusing to allow defense counsel to cross-examine an identifying witness on his ability to observe the defendant at the scene of the crime. While this court found such error harmless, it relied heavily on the strong evidence presented at trial in the case.

... Sgt. Lang testified that his identification was based solely on the events of the day of the robbery and was not influenced by one-on-one confrontations at the police station. His testimony was unshaken on cross-examination ... Both witnesses positively identified the defendant in court. Both testified that their identifications were based on the happenings when the crime was committed.

Id., 257 Pa.Superior at 297, 390 A.2d at 830.

In the instant case, the police witnesses at the suppression hearing portrayed a one-on-one on the scene identification based on the testimony of the absent and sole eye-witness, Ms. Woodley, the victim in this case. Ms. Woodley’s absence at the suppression hearing deprived appellant’s counsel of the opportunity to hear her version of the procedure and to cross examine her. Certain facts became known at trial which would have raised proper questions by appellant’s counsel at the suppression hearing, which had been held four days earlier. Ms. Woodley testified at trial that after the preliminary hearing in this case, she went home and pondered about whether she identified the right man in identifying appellant. The preliminary hearing was held sixteen days after the robbery. Appellant had grown facial hair by that time and this fact made Ms. Woodley uncertain about whether she had made a mistake.

In addition, while the police testified that to their collective knowledge, they brought back four suspects for Ms. Woodley’s identification, Ms. Woodley testified that she viewed between six and twelve subjects. Had Ms. Woodley been present at the suppression hearing, counsel for the Commonwealth and for appellant could have elicited from her the particular circumstances of the robbery, that is, her ability to view appellant, how long the intruders stayed in her house, and her confidence in identifying appellant at that time. She would also have been able to convey her side of the one-on-one confrontations.

As the record stands, this invaluable information from the victim was not presented to the suppression court. And, more importantly, the defense attorney was not afforded the opportunity to cross examine the victim as to the confrontation procedure.

My consideration of this case convinces me that, following the guidance of Commonwealth v. Lee, supra, the Commonwealth did not meet its burden of proof at the suppression hearing. “At a hearing on a motion to suppress an ‘on the scene’ identification it is essential that the identifying witness testify.” Id. 262 Pa.Superior Ct. at 286, 396 A.2d at 757. While it is true that in the Lee case, this court chose to determine without a new hearing whether the identification was reliable, I feel that the facts of this case do not warrant such a review. Rather, appellant must be offered a new suppression hearing, and, if necessary, a new trial. When a defendant challenges the on-the-scene identification procedures involved in his case, it is incumbent on the Commonwealth, as essential to its burden of proof, to produce the only person who suffered the harm, and the only eye-witness to the crime, who alerted police, and who subsequently identified the defendant when he was brought back to the place in which the criminal incident occurred. Failure to do this should result in suppression of the identification. And for this reason, I respectfully dissent from the opinion of the majority.

This case should be remanded for a new suppression hearing and, if necessary, a new trial.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . The trial judge states in his opinion that appellant raised this theory for the first time post-trial therefore waiving the issue. An examination of the record belies this conclusion.

      . Of course, in the case before us, the complaining witness is also the identifying witness.

      . See Commonwealth v. Almeida, 362 Pa. 596, 603, 68 A.2d 595, 599 (1949), In re Pew’s Estate, 411 Pa. 96, 104, 191 A.2d 399, 404 (1963).

      . It should be emphasized that exclusionary rules are designed to prohibit improper police conduct. U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. The exclusion of identification testimony is proper when improper police conduct results in an impermissible suggestive confrontation. The primary focus is on police action. See Manson v. Brathwaite, supra. (Emphasis supplied).

      . (1) Negro male, medium complexion, 21 years of age, six foot tall, 230 pounds, medium bush hair, a brown hat, dark pants, brown trench coat, heavy mustache.
      (2) Negro male, dark complexion, 25 years old, 5'6", 145 pounds, black hat with wide brim, dark brown leather maxicoat.
      (3) Negro male, medium complexion, 20 to 25 years, 5'6", 145 pounds, dark hat, light pants, a black waist-length leather coat, earring in left ear.

      . In Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980), Justice Larsen, dissenting, commenting on Commonwealth v. Lee, supra, recognized the unavailability of a witness as a possible exception to a per se exclusionary rule. While herein we are disclaiming a per se rule, we in no way encourage the absence of an identifying witness, and recognize that in many cases such an absence could be fatal to the Commonwealth’s burden.

      . Appellant raised one more issue in his Statement of Questions. This issue was not addressed in the argument portion of his brief. It is therefore waived. Commonwealth v. Jackson, 494 Pa. 457 n.1, 431 A.2d 944 n. 1 (1981).

      . See also Commonwealth v. Jackson, 227 Pa.Superior Ct. 1, 323 A.2d 799 (1974) (In the photo array situation, actual array must be displayed at the suppression hearing.); Commonwealth v. Hodge, 246 Pa.Superior Ct. 71, 369 A.2d 815 (1977) (Photo identification inadmissible if Commonwealth fails to produce photographs at suppression hearing.)

      . Ms. Woodley, the victim, would not identify appellant, had signed a statement two weeks previous that she would ‘not prosecute’ appellant, and while she unequivocally identified appellant’s co-defendant, she indicated her fear of prosecuting the wrong person in appellant.


author: BECK, Judge:

text:
    457 A.2d 931
    COMMONWEALTH of Pennsylvania v. Robert McKNIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1982.
    Filed March 4, 1983.

      Marc Alan Krefetz, Philadelphia, for appellant.
    Gail Thackery, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

On the morning of May 17, 1979, two men, later identified as appellant Robert McKnight and one Clifford Fruster, entered the Jeans Joint on Frankford Avenue, Philadelphia, shortly after the manager James Lomax opened the store for business at 10 AM. McKnight and Fruster shopped for clothing, selecting underwear, two jogging suits, Puma sneakers, a suede jacket, and some sweatshirts, altogether about $200 worth of merchandise. When Lomax added up the purchases, Fruster pulled out a revolver and ordered Lomax to open the register. Fruster took the $65 in cash which the register contained. While this was going on, McKnight went over to a woman shopper, the only other person in the store, and forced her to lie face down on the floor. The two men then placed Lomax on the floor, tied him up with a belt, and left the store with the cash and the merchandise.

McKnight and Fruster were brought to trial before a judge and a jury in March, 1980, and convicted. McKnight was found guilty of robbery and conspiracy and sentenced to two and one half to five years imprisonment for robbery and a concurrent seven year term of probation for conspiracy. Post-trial motions for a new trial and in arrest of judgment were filed, and this direct appeal followed.

The prosecution’s case against McKnight and his co-defendant turned on Lomax’s identification of the robbers, and the forms of this identification inter alia are now challenged. Appellant McKnight raises two issues. First, he charges that his constitutional right to counsel was violated by two pre-trial identifications at which his counsel was not present. His second claim is ineffective assistance of counsel at trial. He argues that trial counsel failed to preserve, by post-trial motion, a challenge to a ruling of the lower court. This ruling sustained the Commonwealth’s objection to the defense’s cross-examination of Lomax. In addition, he claims that trial counsel failed to object to the prosecution’s closing statement which alluded to a remark made by one of the robbers during the crime. This statement, he contends, suggested that appellant had a criminal record. Since McKnight is represented by new counsel for this appeal, the claim of prior ineffective assistance is properly before this Court. Com. v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Our review begins with McKnight’s challenge to the two pretrial identifications. Lomax first identified McKnight at an uncounselled photographic display on September 13, 1979, at which time McKnight was under arrest and in custody but not for the Jeans Joint robbery (R. 31). Appellant contends that he was entitled to representation by counsel at the showing of the photos, relying on the authority of Com. v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970); cert. denied 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1971). Whiting stood for the rule that the right to counsel attaches to pretrial photographic identifications of a suspect in custody. Subsequent to Whiting, the United States Supreme Court considerably reduced the Sixth Amendment right to counsel at photo displays for identification. In United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 2579, 37 L.Ed.2d 619 (1973) the Supreme Court ruled, in a review of a case in which photos of the suspect were displayed after indictment: “We hold ... that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to attempt an identification of the offender----”.

McKnight contends that his right to counsel at the photo identification, although no longer guaranteed by the Sixth Amendment of the federal constitution, is provided by the constitution of Pennsylvania. In light of the facts in his cases we do not accept his argument. The photo identification in the case at bar occurred when McKnight was in custody for another offense and had not yet become a suspect in the Jeans Joint robbery. We find that McKnight’s circumstances are on all fours with those of the defendant in Com. v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974). In Jackson, the suspect was apprehended for a December 1971 burglary. While he was in custody, his photograph was legitimately identified without the presence of counsel, by a victim in a January 1972 burglary. We therefore hold that in Pennsylvania, the right to counsel does not attach when the suspect is in custody for a different offense.

Under these circumstances, i.e. where there has not yet been an arrest for the offense in question, “[S]o long as the display is available for use by the defense, there is no constitutional requirement that the suspect in custody be afforded the right to have counsel present” (Jackson, supra 323 A.2d at 804, Com. v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), Com. v. Glover, 265 Pa.Super. 19, 401 A.2d 779 (1979). In footnote 3 of his opinion, Judge Cercone pointed out that it is reasonable to assume that all persons whose pictures are part of a photo layout are equally suspect, and the requirement of counsel present for each person whose picture is shown would create chaos at the identification.

We are bound to follow the standard for pre-arrest photo arrays set out in Jackson, in which our Court held that under the circumstances, an uncounselled photo identification is suppressible only when a display procedure is so impermissably suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Applying this standard to McKnight’s case, we find that appellant’s rights under the Pennsylvania constitution were not violated.

The police officer who showed Lomax photos of McKnight on September 13 did not know whether McKnight was in custody or not. He did know that no arrest had yet been made in the Jeans Joint robbery (Suppression Hearing R. 1.159-60). Two photo displays, each with nine pictures, were given to the victim (R. 1.156). They were displayed in a portfolio which covered the men’s names and addresses but revealed their heads and shoulder areas. The police officer asked Lomax if he could identify one of the men from the robbery from any of the pictures, which Lomax was able to do. There were no suggestive remarks, questions, or instructions. With respect to the challenge of photographic identifications at the suppression hearing, this Court has required that evidence of the display be such “that the defendant would at least be in a position to attack the credibility of the identifying witness testimony.” Jackson, supra, 323 A.2d at 804. See also Lee, supra. This requirement has been met for McKnight. The findings of fact in the instant case made by the suppression hearing court that all the pictures were of “persons reasonably similar, and within permissible range of skin tone, age, nature of hair, in body build and weight, in facial construction” (Suppression Hearing Opinion, p. 30) lead to the conclusion that the display was neither suggestive nor manipulative. Accordingly, we affirm the order of the court which denied McKnight’s motion to suppress the photo identification.

The second identification which McKnight challenges was made by Lomax at a corporal lineup on October 4, after he and Fruster had become suspects in the Jeans Joint robbery. A pre-trial identification at a corporal lineup is inadmissible at trial when obtained in violation of the accused’s right to counsel or when obtained by a procedure that is “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to deny the accused due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), Com. v. Lee, supra, relying on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Although McKnight was then a suspect as one of the perpetrators of the Jeans Joint rqbbery, he did not appear in the line-up as the prime suspect (in this instance Fruster, who was represented by the public defender), but as a “fill-in” of Fruster’s choice. At a later lineup, on October 10, McKnight appeared in the lineup as prime suspect, with a public defender as counsel. In that second lineup (the third identification), which McKnight does not challenge, Fruster appeared as a “fill-in” of McKnight’s choice. At both these lineups, Lomax identified both McKnight and Fruster; i.e. he selected the prime suspect and one fill-in.

Standard procedure of the Philadelphia Police Department at the Detention Center is to allow suspects to choose their own fill-ins. They are allowed to select anyone of their fellow prisoners who is willing to appear. Volunteers are paid $.50 per appearance plus one free phone call for their services (Suppressing hearing R. 1.114, 1.33-4). In each instance, the public defender at the lineup represents the prime suspect but not the fill-ins (R. 1.77, 1.89). It is against the policy of the police department to allow two suspects in one lineup (R. 1.113) and the detective in charge on both of the occasions, October 4 and 10, did not know that a fill-in among the men in the line was a suspected co-felon (R. 1.112-113, 1.125, 1.127-8). In fact, there is evidently no practical way for the police in charge of a lineup to know whether fill-ins are suspects or not (R. 1.131, 1.149).

If fill-ins inquire about their rights, they are informed that if they are selected by a victim it would be considered an illegal procedure since they appeared without counsel. If they do not ask a question about their rights as fill-ins, the police say nothing. (R. 134-5).

McKnight’s challenge of constitutional violation in Lo-max’s identification of him while he was a fill-in raises the issue of whether there is an affirmative obligation on the part of the Commonwealth to provide counsel for every person who appears in a lineup. We decline so to find. McKnight argues that Butcher v. Rizzo, 317 F.Supp. 899 (E.D.Pa.1970) provides rights to fill-ins that are appropriate to him. We disagree. In Butcher v. Rizzo, a civil rights action brought under 42 U.S.C. § 1983, the District Court enjoined police from conducting lineups in which citizen fill-ins participate, unless the citizen fill-ins execute a written form attesting that they are aware that there are no charges against them, that they are not under arrest, that they are under no compulsion to appear, and that they are free to leave at any time. If the prospective fill-in is a minor, parental consent must be obtained. The police in Butcher v. Rizzo had used fill-ins drawn from citizens off the street, paying them $2 per hour, because no one of suitable appearance had been found in custody at the Police Administration Building in Philadelphia. The court in Rizzo commended the police effort to find fill-ins of like physical characteristics, so that line-ups would be as fair as possible, and at the same time expressed concern about the rights of citizens who were being asked to give up their time for this purpose.

We do not believe that the rule in Rizzo applies to individuals in the prison population who voluntarily subject themselves to lineups in which they know they may be identified as a co-defendant of the prime suspect. The police warning to fill-ins that they are protected from identification because they are unrepresented by counsel cannot be used by co-suspects in a crime to manipulate procedures and to insulate themselves from valid identifications. We agree with the findings of the court in the suppression hearing that the police running the line-ups in the Jeans Joint identifications did not know that co-suspects were twice in the lineups, and we affirm the order denying the motion to suppress McKnight’s identification by Lomax on October 4.

We also note that even if either or both of the contested identifications were constitutionally tainted, which we have declined to find, Lomax’s in-court identification of both McKnight and Fruster purged the taint. In Com. v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) our Supreme Court held that an in-court identification following an illegal out of court identification is admissible into evidence if the in-court identification meets the following criteria of reliability:

“(1) the manner in which the pretrial identification was conducted; (2) the witness’ prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant’s actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.”

Lomax had the opportunity to observe McKnight at close range for about twenty minutes, in mid-morning, in a well-lighted store. The time of his observance was spent helping the men choose clothing, before the onset of the stress of being held up at gunpoint. Lomax never mis-identified another person for either McKnight or Fruster, and he never failed to identify either of the men at the photo display or the lineups. We affirm the trial court’s holding that the Commonwealth proved by clear and convincing evidence, as is their burden, that the totality of circumstances affecting Lomax’s identification of McKnight is decisively established, and his in-court identification constitutionally valid.

We turn now to McKnight’s claim of ineffective assistance of counsel. The first assertion is trial counsel’s failure to preserve in post-trial motion an objection to the lower court’s sustaining of the Commonwealth’s objection to the defense’s cross-examination of Lomax. Trial counsel read into the record a description of McKnight given by Lomax which failed to indicate a scar on McKnight’s face (R. 121-4). The jury was given an opportunity to observe McKnight at close range, to see that he did have a scar. In fact, Lomax’s description did not say McKnight had no scar, only that he did not know whether McKnight had a scar or facial hair. During the cross-examination, the district attorney correctly objected to a question by defense counsel which asked Lomax to speculate on what he might have seen (R. 121), a question which was properly stricken by the court below. Any discrepancy between Lomax’s description of McKnight and his courtroom appearance went to the weight of the identification, not its admissibility. We believe that in this instance there was nothing to preserve in a post-trial motion. The claim of ineffectiveness fails when counsel does not perform a fruitless act. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Com. v. Hubbard, supra.

McKnight’s second claim of ineffectiveness of counsel is ¿ charge that trial counsel failed to object to a part of the district attorney’s closing argument which, he claims, suggested that he had a prior criminal conviction. Lomax testified that when the two men came into the Jeans Joint, posing as customers, one of them said “that they had just gotten out of the joint and they wanted some clothes.” (R. 75-7). Defense counsel objected to the testimony and the court ruled, we hold correctly, that Lomax was entitled to describe what had happened at the robbery, since the statement was not offered as truth, to prove that the men had indeed just left prison. The district attorney later alluded to this remark in his closing statement. Because Lomax’s description of what happened was properly admitted as testimony (the remark not having been offered to prove prior criminal activity), and since McKnight denied that he was ever in the Jeans Joint, McKnight cannot properly claim prejudice by the statement. Once the court admitted the remark over defense counsel’s objection the point was preserved for appeal. In fact, the claim was addressed in the court’s initial opinion (p. 8) and in the supplemental opinion (p. 4), both passages evidently overlooked by McKnight’s replacement counsel. The last claim therefore also fails.

In conclusion, we hold that the pre-trial identifications of McKnight were valid, the in-court identification was not tainted, and that McKnight was effectively represented by counsel at trial.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

      . In September 1979 McKnight was under arrest and in custody for a robbery of Angie’s Bar. He was convicted, and that case is presently being appealed.

      . Article 1, 9 of the Pennsylvania constitution reads:
      Rights of accused in criminal prosecutions
      In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.

      . We thus find it unnecessary to reach the question of whether Whiting is still the law in Pennsylvania. See Judge Jacobs’ concurrence in Jackson, supra, which argues that Whiting has no application when an uncounselled identification was made while the suspect was in custody for an unrelated offense. For a review of Whiting’s status, see Com. v. Diggs, 260 Pa.Super. 349, 394 A.2d 586 (1979).

      . The United States Supreme Court has set out the following factors to consider in determining whether an in-court identification is independent:
      the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to line-up of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.

        United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1165 (1967).