Com. v. Carter

• Decision Date: 28 May 1980
• Parties: COMMONWEALTH of Pennsylvania, v. James CARTER, Appellant.
• Court: Pennsylvania Superior Court

Page 369

414 A.2d 369

271 Pa.Super. 508

COMMONWEALTH of Pennsylvania, v. James CARTER, Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 8, 1978.

Filed Nov. 16, 1979.

Petition for Allowance of Appeal Denied May 28, 1980.

John W. Packel, Asst. Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before PRICE, SPAETH and WATKINS, JJ.

PRICE, Judge:

Following a jury trial concluded on October 7, 1976, appellant was convicted of robbery ¹ and conspiracy. ² Post-trial motions were denied, and he was sentenced to consecutive terms of from ten to twenty years imprisonment on the robbery charge, and two and one-half to five years on the conspiracy charge. Appellant now alleges that the trial court erred in admitting certain identification testimony and in selectively reviewing the evidence for the jury. We disagree and consequently affirm the judgment of sentence.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the following facts were adduced at trial. At 8:50 on the evening of August 3, 1976, Philadelphia Highway Patrol Officer George Moriarty received a radio call to "investigate two males acting suspiciously on the corner of 22nd and Annin Streets." (N.T.S.H. 8). Together with his partner, Officer Burton, Officer Moriarty proceeded to the area where he observed appellant and another male running east on Annin Street towards the police cruiser. Appellant was carrying a brown paper bag from which what appeared to be a gun barrel protruded. Officer Moriarty exited his vehicle and ordered appellant to stop, at which time the latter dropped the brown bag and, after running a short distance, finally halted. He was then frisked, handcuffed, and placed in the rear seat of the police car.

Officer Moriarty was then informed by another patrolman that a neighborhood bar had just been robbed and that the police radio had described the suspect as wearing blue dungaree pants, blue shirt, sneakers, and carrying a shotgun. Because appellant was similarly clothed (with the inclusion of a blue knit watchcap), Officer Moriarty requested a police wagon which subsequently transported appellant to the "Most Complete Bar" at 22nd and Ellsworth Streets.

At the bar, Robert Sapp, an off duty Philadelphia patrolman who had been a patron at the time of the robbery, was just returning from a fruitless attempt to locate the criminals. As he neared the bar, he could observe appellant being escorted from the police wagon. Once inside the bar, Officer Sapp identified himself to the arresting officers, after which he and the patrons were asked if they recognized appellant. Officer Sapp and others indicated that facial identification was impossible because the robber's face was covered. Officer Sapp noted, however, that both the suspect's build and clothing were identical to that worn by the robber save for a blue knit cap, which the latter had pulled down over his features. At this point, one of the patrolmen returned to the car, retrieved appellant's cap, and placed it on his head. Officer Sapp then positively identified appellant as the robber. Officer Sapp also identified the brown bag and barrel, which were now being carried by Officer Moriarty, as the object carried by the robber. Herman Casey, the bartender of the establishment, also identified the bag and barrel. ³

Appellant's first contention centers about the procedure employed by police during the on-the-scene identification. Specifically, he cites the following three factors which allegedly coalesce to render that identification suggestive and to fatally taint the subsequent in-court testimony: the simultaneous presentation of appellant and the weapon purported to be used in the robbery; the act of returning appellant to the bar with a knit cap following an initial presentation without the cap; presenting appellant to the patrons of the bar in a group. We will discuss these points seriatim.

Preliminarily, it is well settled that an on-the-scene identification made shortly after the occurrence of the crime does not ipso facto offend a suspect's due process rights. Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974); Commonwealth v. Bullock, 259 Pa.Super. 467, 393 A.2d 921 (1978); Commonwealth v. Ramsey, 359 Pa.Super. 240, 393 A.2d 806 (1978); Commonwealth v. Santiago, 229 Pa.Super. 74, 323 A.2d 826 (1974). Absent some special element of unfairness, the close proximity in time and place to the actual offense so enhances the reliability of such an identification as to outweigh any possibility of irreparable misidentification that might arise from the witness's observance of the suspect in police custody. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Commonwealth v. Rose, 483 Pa. 382, 396 A.2d 1221 (1979); Commonwealth v. Mackey, 447 Pa. 32, 288 A.2d 778 (1972); Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1978). Indeed, a prompt opportunity for identification benefits both parties to the transaction; if an identification proves negative, the suspect may be immediately released and the police may continue their investigation while the leads remain current.

As to appellant's first point, the simultaneous display of appellant and the purported weapon did not possess the requisite "unfairness" to taint the proceeding. In Commonwealth v. Jones, 231 Pa.Super. 323, 331 A.2d 788 (1974), the defendant was identified in an on-the-scene confrontation by a cashier who had just been robbed. The defendant alleged that the officer had displayed the handgun used in the robbery during the identification, thus rendering the procedure unnecessarily suggestive. Although we rejected this argument on the basis that the gun was not shown until after the identification, we noted that, "even if appellant's contention had been established, it is doubtful if this fact could be considered as a 'special element of unfairness.' " Commonwealth v. Jones, supra at 326, 331 A.2d at 789. We see nothing in the facts of the instant case to alter our dicta expressed in Jones that presentation of the suspect together with the weapon employed is not unduly suggestive.

With respect to the cap, appellant's reliance on Commonwealth v. Lee, 215 Pa.Super. 240, 257 A.2d 326 (1969), is misplaced. In Lee, the manager of a retail store reported that he had been held-up at 11:30 that evening. At 2:00 a. m., he was brought to the police station where a group of five people, including the defendant, had been assembled. The victim was initially unable to positively identify any in the group. Thereafter, the police displayed a car that they believed had been employed in the robbery. After the witness had identified the car, he was told that the suspects had been seen in the car prior to their apprehension. The witness then returned to the hearing room and identified the defendant and another individual because " 'it was supposed to be two boys, so I just guessed and I said those two boys,' " Commonwealth v. Lee, supra at 243, 257 A.2d at 328.

The distinction between Lee and the instant factual situation is obvious. First, the officers here were merely presenting appellant as he was arrested, that is, wearing the cap. Second, unlike the vacilation exhibited by the witness in Lee, Officer Sapp described the actor and the cap in detail. The addition of the cap was necessary because of the inability of the witnesses to view the intruder's facial features. Third, in Lee the witness was essentially told by the police, "some of the suspects were driving in this car; thus, if you identify the car as being connected with the crime, some of the suspects must have been the perpetrators." Consequently, when the witness did indeed identify the car, he was in a sense coerced into singling out one or two of the suspects. In the present case, it was at no time intimated to Officer Sapp that because he identified the cap as being worn in the robbery, the owner of the cap would ipso facto be the robber. Quite the contrary, he gave a tentative identification of appellant that hardened into certainty with the addition of the cap. We see no other means by which the police could have assured a more just result.

Finally, we disagree with appellant that his presentation to the patrons of the bar en masse constituted, under these facts, a special element of unfairness. Initially, however, we must agree that the practice of presenting a suspect to a group of witnesses in each others company at an on-the-scene identification is fraught with the danger of suggestivity, and we can not approve such a procedure unless absolutely necessary. As was noted by the District of Columbia Court of Appeals in United States v. Wilson, 435 F.2d 403, 405 (D.C.Cir.1970):

"If it is feasible for each witness, victim or otherwise, to stand alone when asked to make the identification, aye (or) nay, this is the course that should be followed. While the benefit of a prompt on-the-scene confrontation makes acceptable the necessary suggestiveness of presentation of a single subject (a 'show-up'), there is ordinarily no need for the additional element of suggestiveness of identification made at the same time by two or more witnesses in each other's company."

Accord Clemons v. United States, 408 F.2d 1230 (D.C.Cir.1968); United States ex rel. Choice v. Brierley, 363 F.Supp. 178 (E.D.Pa.1973) ; Smith v. State, 352 A.2d 765 (Del.1976); State v. Cooper, 14 Ohio Misc. 173, 43 Ohio Ops.2d 410, 237 N.E.2d 653 (1968). The vagaries of memory are such that the identification, or the intimation of an identification, by one witness could well trigger an automatic procession of identifications, albeit in good faith, by other witnesses in his presence. The result of this domino effect is patently prejudicial. Moreover, even before a first identification is made, the possible conversation among the...