Commonwealth v. Miles ( 2004 )

DISSENTING OPINION BY

HUDOCK, J.:

¶ 1 The testimony of the two victims in this case was not seriously impeached in any way. The victim, Joyce Jones, testified that she was robbed after parking her car directly under a streetlight. When the robber placed a silver gun to her head, she turned around and looked into his face. She concentrated on his face, thinking “his was the last face she would see before she died.” She also saw that a light-skinned black woman, very tall and thin, was standing next to the robber. She observed these two individuals for approximately ten minutes. After the robbers left, she immediately called the police and gave a detailed description of the robbers, and of the coat the man was wearing. When Appellant was arrested, the Commonwealth showed Jones the jacket Appellant was wearing when he was arrested, and she identified it as the jacket she had seen at the time of the robbery. More importantly, two days later, she picked Appellant’s photograph out of a photo spread of suspects shown to her by detectives. She further testified that she was able to get a good look at Appellant’s face because they were directly under a street light.

¶ 2 The evidence further shows that shortly after Jones was robbed, Harold Philip was robbed. After Appellant was arrested, Philip also recognized the jacket, hoody and cap which Appellant was wearing when he was arrested. Most importantly, Philip “immediately” chose Appellant’s picture when he went to the station two days later. Out of eight photographs, Philip chose Appellant’s without hesitation. He further testified that he was 102% sure that he was the man who robbed him.

¶ 3 In my opinion, the above stated facts, apparently accepted by the jury, constituted overwhelming evidence of guilt and the prejudicial effect of the error found by the majority, is so insignificant by comparison that the error could not have contributed to the verdict.

¶ 4 I would affirm the judgment of sentence, and accordingly I respectfully dissent.