Com. v. Holland

• Decision Date: 14 July 1978
• Citation: 480 Pa. 202,389 A.2d 1026
• Parties: COMMONWEALTH of Pennsylvania v. Ronald E. HOLLAND, Appellant.
• Court: Pennsylvania Supreme Court

Page 1026

389 A.2d 1026

480 Pa. 202

COMMONWEALTH of Pennsylvania v. Ronald E. HOLLAND, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 20, 1977.

Decided July 14, 1978.

[480 Pa. 206] Frank J. Marcone, Media, for appellant.

John G. Siegle, Asst. Dist. Atty., for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Ronald E. Holland, was tried by a judge sitting with a jury and was convicted of voluntary manslaughter in connection with the shooting death of Michael Timchattin. Post-verdict motions were denied and appellant was sentenced to five to ten years in prison and a $250 fine. This appeal followed. The facts surrounding this homicide are as follows. Appellant and the decedent were both employees of Reynolds Metal Company. The decedent was appellant's foreman. The working relationship between appellant and the decedent was strained as a result of cross-complaints concerning labor grievances that they had filed against each other.

On September 18, 1973, appellant was in the Village Cafe West drinking. While in the bar, appellant complained about the decedent to a co-worker, Michael Mortimer. Appellant left the Village Cafe West and walked across the street to Sbandi's Bar, where the decedent had arrived approximately fifteen minutes earlier. Appellant entered the bar and confronted the decedent. A verbal exchange took place concerning the working disagreements that existed between the two. Appellant then left the bar. Within a few minutes the decedent also left Sbandi's. Within minutes, shots were heard and the decedent staggered back into the bar and collapsed.

Appellant first argues that the suppression court erred in not suppressing the identification testimony of Lloyd Bell, a Commonwealth witness. The basis for appellant's contention is that Bell's identification was tainted by an impermissible (and subsequently suppressed) uncounselled physical lineup. The Commonwealth does not contest that the suppression court properly suppressed any testimony or evidence concerning Bell's identification of appellant at Chester Police Station; rather, the Commonwealth contends that the Bell identification had an independent basis. We agree that Bell's in-court identification was properly admitted into evidence.

In Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976), this court stated:

". . . (T)o determine if these identifications were independent of any possible improprieties, we should consider the factors set out by the United States Supreme Court:

'. . . 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 lineup, of any 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 (1967). See Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973)."

At the suppression hearing, Bell testified as follows:

"A. I had just finished bowling, and I stopped there to pick up my daughter, that was staying with my aunt.

"Q. You were in your car at the time?

"A. I had just gotten out of the car.

"Q. All right. When you got out of your car, would you please describe what you saw at that time.

"A. I was just about to lock the car when I heard a shot or two shots ring out. And it was so close that it startled me. And I just backed up against the car and waited, and finally two figures emerged from the alley beside the bar.

"Q. Now did both of those figures come nearer to you?

"A. Yes.

"Q. And how close did you got to them, or how close did they get to you?

"A. Well, the one person came across the back of the building and down a little, I guess about a two-foot wall there, and walked down along the side of the bar and then disappeared around the corner. The other person came up along two cars to another little paved section behind homes there and came right across the street within about three and a half, four foot of me where I was standing beside a tree at the car.

"Q. What were the lighting conditions right then and there near that tree?

"A. Fairly good. There was a street light right there at the end of that alley.

"Q. Do you recall how that person was dressed?

"A. Yes.

"Q. How was that person dressed?

"A. Blue denims, the top and bottom, white T-shirt. From the sound of it, it sounded like heavy shoes.

"Q. And you say the person got within three or four feet of you?

"A. I could have reached out and grabbed him.

"Q. Did you get a good view of his face?

"A. A profile view.

"Q. Can you describe his facial appearance?

"A. I say a profile view because as he came across the alley I noticed what I thought was a weapon still in the hands, and I had my eye on that until the figure was just about beside me, and I looked up in the face. There was long, about shoulder length, wavy dark hair, a beard, what else can I say?"

We believe the above testimony is sufficient to sustain the Wade criteria for independent identification. Appellant contends, however, that Bell failed to identify him at a preliminary hearing and, therefore, his identification should have been suppressed.

The facts surrounding appellant's contention are: Appellant at the time of his arrest had long hair, sideburns and a mustache and was unshaven. He was photographed by police after his arrest with the above features. However, he appeared at his preliminary hearing with short cropped hair and no mustache, beard or sideburns. At the preliminary hearing, Bell failed to positively identify appellant. At the suppression hearing, he explained that his failure to identify appellant was based on his "new" appearance. Bell positively identified two police photographs taken at the time of appellant's arrest. These photographs depicted appellant with his "old" appearance of long hair, sideburns, mustache and beard. We do not believe that Bell's failure to identify appellant at the preliminary hearing tainted his independent recollection and the suppression court did not err in determining that an independent basis existed for Bell's identification.

Appellant next argues that the court below erred in failing to conduct a suppression hearing concerning the testimony of Commonwealth witness Joseph Hinton. The Commonwealth contends that appellant has waived any objection to Hinton's testimony by failing to include his objection to Hinton's testimony in his timely suppression motion. We agree with the Commonwealth.

The facts surrounding this issue are: On January 31, 1974, appellant was indicted for murder and voluntary manslaughter by the Grand Jury of Delaware County. Among the witnesses listed on the back of the indictment was Joseph H. Hinton. Hinton was then a clerk in the Woolco Department Store firearms department in Claymont, Delaware. Hinton testified at trial that appellant purchased ammunition of the same type that was found in the decedent's body.

On June 17, 1974, appellant was brought to trial. On June 18, 1974, pursuant to a defense motion, a mistrial was granted. On August 19, 1974, appellant filed a motion to suppress. The basis of this suppression motion was an alleged uncounselled physical lineup at the Chester Police Station. In the suppression motion appellant named Gloria Restaneo, Lloyd Bell, John Williams, Jr., and William Mola, but there was no mention of Joseph Hinton. On September 9, 1974, the court suppressed certain testimony of the above witnesses, but allowed Bell and Williams to testify because of its determination of an independent recollection as to identity.

Appellant's trial began on September 9, 1974. On September 10, during the district attorney's opening, he described what the testimony of Hinton would be and stated that Hinton had identified appellant at a photographic lineup. On September 11, defense filed a petition to suppress the photographic identification. The court held an in camera hearing to determine the basis of this supplemental petition to suppress. Defense counsel contended that the opening statement of the district attorney was his first knowledge of Hinton, of his testimony, and of the uncounselled photographic "lineup." The court below denied appellant's supplemental suppression motion as untimely filed. The court concluded that appellant had failed to undertake any pretrial discovery or investigation to ascertain the whereabouts of the witnesses listed on the bill of indictment and had not attempted to interview any of the witnesses.

During trial, Hinton testified that appellant purchased ammunition at the Woolco Store in Delaware. Hinton also identified a police photograph of appellant taken days after the arrest. ¹

On cross-examination, defense counsel elicited testimony that Hinton had been shown a series of six photographs ² by the Chester police and that he identified appellant. On re-direct examination Hinton testified that appellant, as depicted in police photograph C-25, was the person who purchased the ammunition.

The then-applicable Pennsylvania Rule of Criminal Procedure 323(b) (1974) provided in relevant part:

"(b) Unless the opportunity did not previously exist, or the interests of justice otherwise require, . . . application (to suppress) shall be made only after a case has been returned to court and not later than ten days before the beginning of the trial session in which the case is listed for trial, except that in any judicial district having continuous trial sessions said application shall be filed not later than ten days before the day the case is listed for trial. If timely application is not made hereunder, the issue of the admissibility of such evidence shall be deemed to be waived."

Under the facts of this...