Com. v. Crork

• Decision Date: 10 February 2009
• Docket Number: No. 1794 MDA 2007.,1794 MDA 2007.
• Citation: 2009 PA Super 24,966 A.2d 585
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey Alton CRORK, Appellant.
• Court: Pennsylvania Superior Court

966 A.2d 585

2009 PA Super 24

COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey Alton CRORK, Appellant.

No. 1794 MDA 2007.

Superior Court of Pennsylvania.

Submitted August 4, 2008.

Filed February 10, 2009.

MaryJean Glick, Public Defender, for appellant.

Donald R. Totaro, Asst. Dist. Atty., for Com., appellee.

BEFORE: STEVENS, FREEDBERG, and POPOVICH, JJ.

OPINION BY STEVENS, J.:

¶ 1 Jeffrey Crork appeals from a September 12, 2007 judgment of sentence entered following his conviction for robbery pursuant to 18 Pa.C.S.A. § 3701. We affirm.

¶ 2 Crork was arrested after a 22 year old hotel clerk identified him as the man who had robbed her on May 19, 2006. Several days after the robbery, the clerk identified Crork from an eight person photo lineup, and also identified a single photo of a tattoo as the tattoo she had seen on the robber's arm. After Crork was charged with one count of robbery, he filed a pre-trial motion seeking to suppress the clerk's identification of his photo on the ground that the photo lineup used was prejudicial and unduly suggestive. Motion filed 5/24/07. Crork also sought suppression of the clerk's identification of the tattoo on the ground that he was prejudiced by the presentation of the single photo instead of a photo lineup of similar tattoos. Id. Following a hearing, the trial court declined to suppress either identification, and a jury trial was conducted on July 9, 2007.

¶ 3 Crork was eventually convicted of robbery and sentenced to a prison term of eight to 20 years. He now raises three allegations of error on appeal.¹ His first two claims pertain to the trial court's denial of his suppression motion. Our standard of review of a suppression ruling is as follows:

We determine whether the court's factual findings are supported by the record and whether the legal conclusions drawn from them are correct. Where, as here, it is the defendant who is appealing the ruling of the suppression court, we consider only the evidence of the prosecution and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the whole record. If, upon our review, we conclude that the record supports the factual findings of the suppression court, we are bound by those facts, and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Pruitt, 597 Pa. 307, 325, 951 A.2d 307, 317 (2008). Here, Crork first asserts that it was error for the trial court to refuse to suppress the clerk's identification of Crork's tattoo based on a single photograph of the tattoo, because use of the single photograph instead of a photographic lineup of other similar tattoos rendered the identification unduly suggestive, unfair, and prejudicial. Appellant's brief at 16.

¶ 4 Crork's counsel raised this issue during the suppression hearing, urging that the identification of a person's tattoo should be subject to the same rules and constitutional protections as identification of the person himself, including the requirement that an out-of-court identification be made from fair, non-suggestive photo arrays. N.T. 7/9/07 at 33. The Commonwealth countered that a tattoo should be viewed as akin to the identification of an inanimate object, citing Commonwealth v. Chmiel, infra, and that any uncertainty in the description goes to the weight accorded the testimony, not its admissibility. Id. at 35. In denying Crork's request to suppress the clerk's identification of the tattoo, the trial court explained:

With regard to the tattoo, I do find that this—any discrepancies between the victim's initial description of the tattoo and what was subsequently identified in the photograph is an issue of weight for the jury. Certainly some description was provided by the victim at the time she originally provided the information to law enforcement authorities. And, again, to the extent that her description differs from the actual tattoo or the photograph of the tattoo that she was shown, that is an issue of weight for the jury.

N.T. 7/9/07 at 36-37. In their appellate briefs, both parties renew the points they raised during the suppression hearing, and indicate that they believe this issue to be one of first impression. Appellant's brief at 17; Commonwealth's brief at 7.

¶ 5 While it appears that no Pennsylvania Court has addressed whether constitutional standards governing identification of persons should apply to identification of tattoos, Pennsylvania courts have been asked to determine whether the constitutional protections afforded during identifications of persons apply to the identification of inanimate objects.

¶ 6 In Commonwealth v. Carter, 271 Pa.Super. 508, 414 A.2d 369 (1979), witnesses to a robbery identified a brown bag and gun barrel (which were then being carried by a police officer) as the objects carried earlier by the robber. Id. 414 A.2d at 371. In declining to afford the same constitutional protections to the identification these objects of real evidence as those afforded to the identification of a person, a panel of this Court explained:

One of the purposes of invoking such stringent requirements on testimony relating to the identity of the accused is the enormous probative weight of such evidence, ofttimes deciding the issue by its admission alone. Identification of an item of real evidence, however, does not generally have this effect. Consequently, it has never been the case that identification of an object must be subject to the same precautions given the identification of a person. Rather, any uncertainty in the description, or suggestivity in a prior identification, goes to the weight to be accorded the testimony, not its admissibility.

Id., 414 A.2d at 373.

¶ 7 Carter was later approved by the Pennsylvania Supreme Court in Commonwealth v. Chmiel, 585 Pa. 547, 586-586, 889 A.2d 501, 523-524 (2005). In Chmiel, a witness identified the appellant's car from a single photograph. Id. 585 Pa. at 582, 889 A.2d at 521. In arguing that the trial court erred in permitting the identification evidence, the appellant asserted that "the identification of the item, i.e., the vehicle, had the effect of identifying Appellant himself." Id. 585 Pa. at 584, 889 A.2d at 522. The appellant urged the Court to abrogate Carter or to limit its application. Id. 585 Pa. at 583, 889 A.2d at 522. In declining to do so, the Court explained:

To be sure, a pretrial procedure in which a witness views a photograph of the accused in an effort to "elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). If such an identification procedure of the accused is "so unnecessarily suggestive and conducive to irreparable mistaken identification, [the accused] is denied due process of law." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). It is clear, then, that photographic identification of a person is unduly suggestive if, under the totality of the circumstances, the identification procedure creates a substantial likelihood of misidentification. See Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102 (Pa.2004).

Neither the United States Supreme Court nor our Court has addressed whether the decisions in Wade, Gilbert, and Stovall extend the protections that are necessary for identification testimony of an accused to that of inanimate objects. However, almost every jurisdiction applies the test articulated in the Wade trilogy to the identification of a person, not physical evidence that might establish the defendant's guilt. See United States v. Zenone, 153 F.3d 725 (4th Cir.1998) (holding the due process clause inapplicable to witness identification of the weapons used by the robbers to link the defendant to the crime); Johnson v. Sublett, 63 F.3d 926, 932 (9th Cir.1995) ("Stovall and its progeny do not require car lineups."); Dee v. State, 273 Ga. 739, 545 S.E.2d 902 (Ga.2001) (finding the Wade trilogy test inapplicable to identification a gun, even though the procedure used was suggestive); Hughes v. State, 735 So.2d 238, 261 (Miss.1999); [People v.] Miller, 535 N.W.2d [518] at 523 [(1995)] ("Any suggestiveness in the identification of inanimate objects is relevant to the weight, not the admissibility, of the evidence."); Brooks v. State, 560 N.E.2d 49, 57-58 (Ind.1990); State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (Ariz. 1984) (en banc); State v. Cyr, 122 N.H. 1155, 453 A.2d 1315, 1317-18 (N.H. 1982); State v. King, 31 Wash.App. 56, 639 P.2d 809, 811-12 (Wash.Ct.App. 1982); Iowa v. Bruns, 304 N.W.2d 217 (Iowa 1981); People v. Coston, 40 Colo. App. 205, 576 P.2d 182, 185 (Colo.Ct. App.1977); Inge v. Commonwealth, 217 Va. 360, 228 S.E.2d 563, 567 (Va.1976); Bear v. Halford, 2001 U.S. Dist. LEXIS 10500, 2001 WL 34152086 (N.D.Iowa 2001).

Chmiel, 585 Pa. at 586-586, 889 A.2d at 523-524. In declining to "extend cases protecting an accused's rights to a fair pretrial identification to the pretrial identification of physical evidence," the Pennsylvania Supreme Court found:

[T]here is no basis for applying the identification procedures applicable to suspects to testimony identifying inanimate objects and we decline to extend cases protecting the accused's rights to a fair pre-trial identification to the pre-trial identification of physical evidence. There is a difference between an identification of a defendant and of an inanimate object. The due process concerns implicated in identification of a defendant are not implicated in the identification of a vehicle. Identification of an accused tends to be direct proof of the case against him, while that of an inanimate object is only indirect proof of ...