Com. v. Jarecki

• Decision Date: 19 May 1992
• Citation: 415 Pa.Super. 286,609 A.2d 194
• Parties: COMMONWEALTH of Pennsylvania v. Christopher B. JARECKI, Appellant.
• Court: Pennsylvania Superior Court

Page 194

609 A.2d 194

415 Pa.Super. 286

COMMONWEALTH of Pennsylvania v. Christopher B. JARECKI, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 16, 1992.

Filed May 19, 1992.

Lawrence J. Hracho, Reading, for appellant.

Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellee.

Before ROWLEY, President Judge, and OLSZEWSKI and MONTEMURO, JJ.

ROWLEY, President Judge:

Christopher Jarecki appeals from the judgment of sentence entered against him in the Court of Common Pleas of Berks County in this criminal action. Appellant raises the following issues for our review: (1) whether the evidence was sufficient to support appellant's convictions; (2) whether the trial court erred in denying appellant's motion to suppress identification evidence and (3) whether the verdicts were against the weight of the evidence. Having thoroughly reviewed the record and considered the arguments of the parties, we vacate and remand for a new trial.

The facts of the case are as follows: On October 3, 1989, a robbery occurred at the Weis Market in the Muhlenberg Shopping Center, Berks County. Linda Young, a store employee, was counting money in the office area of the store when the perpetrator approached her from behind. Ms. Young was ordered, at gunpoint, to give the robber all of the money in the office drawers and safe. A second employee, Elsie Boone, entered the office at that time. The suspect turned, pointed the gun at Ms. Boone, and fled the office. Several other employees observed the robber as he exited the building and made his escape. Three male employees pursued the robber to a nearby Ground Round restaurant parking lot. The three men observed a gray or silver Pontiac Trans-Am speeding away from the area. Approximately six hundred dollars in cash was subsequently discovered in the restaurant's parking lot.

The witnesses described the suspect as a Caucasian male in his late twenties to early thirties, approximately 5'9"' to 6' tall, with a medium build and light brown hair. He wore a blue zippered jacket, blue slacks, a white shirt, and a "Giants" baseball cap. In addition, a blue scarf covered his face so that only his eyes and the underside of his chin were visible. The witnesses also noted that the suspect ran with a limp.

One of the witnesses, Joe Giandomenico, who had pursued the robber, claimed that he saw the robber's face without the scarf. He also claimed that the robber wore dark glasses. No other witnesses, including the two witnesses who pursued the robber with Mr. Giandomenico, saw the suspect's entire face or claimed that the robber wore glasses. Mr. Giandomenico was also the only witness who saw the suspect enter the Trans-Am.

During the ensuing investigation, Mr. Giandomenico assisted the police in making a composite drawing of the suspect. The composite was published in a local newspaper on October 16, 1989. The newspaper article also described the suspect and the car in which he allegedly escaped. Police received two subsequent anonymous phone calls alleging that appellant fit the newspaper's description and had access to a gray Trans-Am.

On November 13, 1989, approximately six weeks after the robbery, Officer Barry Hadley took a photo display book containing seventy-five photographs to the Weis Market. Officer Hadley had incorporated appellant's photograph into the display. The witnesses perused the photo display collectively, and four witnesses, including Joe Giandomenico, selected appellant's photo from the display.

Appellant was arrested and charged with robbery and related offenses. Appellant filed an Omnibus Pretrial Motion for Relief on February 15, 1990, requesting the suppression of the witnesses' identifications. A hearing was held on April 3, 1990, and the Honorable Calvin E. Smith denied appellant's suppression motion in an opinion and order dated May 2, 1990. Following a jury trial, appellant was convicted of robbery (two counts), theft by unlawful taking, and terroristic threats. Post-verdict motions were filed and denied, and Judge Smith sentenced appellant to a total of five to ten years incarceration, plus fines. ¹ This timely appeal followed.

Appellant asserts in his first issue that the evidence was insufficient to support his convictions. Our review of appellant's claim is limited to the following well-established standard:

In reviewing the sufficiency of the evidence, we must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984) (citations omitted). In addition,

the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences therefrom. The effect of such a motion is to admit all the facts which the Commonwealth's evidence tends to prove. Also, in passing upon such a motion, all evidence actually received must be considered, whether the trial rulings therein were right or wrong.

Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985) (emphasis in original) (citations omitted).

After careful consideration, we conclude that the evidence of record was sufficient to sustain appellant's convictions. Four eyewitnesses unequivocally identified appellant at trial. In addition, appellant had access to a gray Trans-Am. On the face of the record, the evidence is sufficient and we will not arrest judgment on appellant's convictions.

Although the evidence of record is sufficient to support appellant's convictions, a new trial is warranted if the convictions are based on inadmissible evidence. Commonwealth v. Maybee, 429 Pa. 222, 226, 239 A.2d 332, 335 (1968). Appellant, in his second issue, asserts that the trial court erred in denying his motion to suppress the photographic identification evidence. After careful review, we conclude that the trial court erred in denying appellant's suppression motion, and we hold that a new trial is warranted.

In reaching our determination, we have applied the following standard:

The scope of our review is limited to determining whether the factual findings of the court in the suppression hearing are supported by the record, and whether the conclusions of law drawn therefrom are correct.

Commonwealth v. Scaine, 337 Pa.Super. 72, 77, 486 A.2d 486, 488 (1984) (citing Commonwealth v. Webb, 491 Pa. 329, 332, 421 A.2d 161, 163 (1980)). "We may reverse the denial of a motion to suppress only if the [suppression] court erred in the legal conclusions drawn from its factual findings." Commonwealth v. Blassingale, 398 Pa.Super. 379, 391, 581 A.2d 183, 188 (1990).

Although the suppression court found that several witnesses made their photographic identifications at the same time, the court determined that the identification procedure was not suggestive because the police officer cautioned the witnesses not to discuss the photographs. A review of the record, however, reveals that the witnesses did not heed the officer's request. Rather, the witnesses discussed the photographic display in an attempt to select the robber. Given the circumstances of this case, and the manner in which the identifications took place, misidentification was highly likely. It is well established that evidence will be suppressed if, under the totality of the circumstances, the identification procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Commonwealth v. Monroe, 373 Pa.Super. 618, 622-23, 542 A.2d 113, 114-15 (1988), appeal denied, 522 Pa. 574, 559 A.2d 36 (1989) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). Our review of the record convinces us that the circumstances surrounding the photo identification procedure make the accuracy of the identifications highly suspect. Accordingly, we conclude that the trial court erred in failing to suppress evidence of the photographic identifications at trial.

The suppression court relied on Brown v. Blackburn, 625 F.2d 35 (5th Cir.1980), as support for its conclusion that the photo identification procedure was not suggestive. We note that even if Brown supported the suppression court's decision, we would not be bound by the decision of another jurisdiction. ² However, a review of Brown shows that Brown actually supports suppression in this matter. The Fifth Circuit court recognized the potential for error in a situation where two witnesses viewed a photographic display at the same time. The court specifically noted that the witnesses should have viewed the pictures separately to mitigate the potential suggestiveness of the situation, even though no discussion took place and the second witness did not see which photograph the first witness selected.

We find that the facts of the instant case are exponentially more egregious than the facts in Brown, as the suggestiveness of the photographic identification procedure is evident from the record. Officer Hadley took the photographic display into the store and showed it to the witnesses approximately six weeks after the robbery, and at least four witnesses viewed the display at the same time. All but one of the four identifying witnesses had seen only the eyes, chin, and hair of the robber, and none of them had described the robber's eyes as distinctive prior to the photographic identification. Furthermore, the witnesses had access to the published composite sketch prior to the identification proceeding. Joe...