Com. v. Richardson

• Decision Date: 15 November 1985
• Citation: Com. v. Richardson, 500 A.2d 1200, 347 Pa.Super. 564 (Pa. Super. Ct. 1985)
• Parties: COMMONWEALTH of Pennsylvania v. Vanders RICHARDSON, Appellant. 00591 Phila. 1985
• Court: Pennsylvania Superior Court

Page 1200

500 A.2d 1200

347 Pa.Super. 564

COMMONWEALTH of Pennsylvania v.Vanders RICHARDSON, Appellant.

00591 Phila. 1985

Superior Court of Pennsylvania.

Submitted Aug. 6, 1985.

Filed Nov. 15, 1985.

Michael A. Jankowski, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before BROSKY, ROWLEY and OLSZEWSKI, JJ.

BROSKY, Judge.

This is an appeal from the judgment of sentence imposed after a jury trial at which appellant was found guilty of aggravated assault, robbery, carrying firearms in a public street and without a license in a vehicle, and conspiracy.

Appellant raises three issues for our determination: whether the trial court erred by not granting a motion to suppressappellant's identification due to a suggestive encounter between the victim and appellant at a preliminary hearing; whether initial trial counsel rendered ineffective assistance by failing to appear at appellant's first scheduled preliminary hearing; and whether the trial court abused its discretion by ruling appellant's prior criminal convictions could be used for impeachment.

We have carefully reviewed the record and briefs submitted by counsel and find appellant's issues to be without merit.Therefore, we affirm the judgment of sentence.

On February 17, 1977Paul Kretovich returned to his car after stopping at a bar to get some beer.As he was getting into his car he was attacked by two males.He was pushed into the car while one of the attackers continually beat him on the head with a pistol.The two attackers jumped into the car, and after driving for ten minutes, pulled over and threw Kretovich out.He summoned the aid of a police patrolman and gave a description and tag number of his car.Thereafter, another police officer spotted the car and began pursuit.The stolen car struck a parked car and the attackers fled on foot.In haste, one of the attackers left some papers and a subpoena addressed to one Allen Whitman on the seat of the car.The next day, Kretovich identified Allen Whitman as one of his attackers.Whitman was arrested and based on information he gave the police, appellant was apprehended.

Kretovich was later subpoenaed to appear at a preliminary hearing in the matter on March 18, 1977.At that hearing only appellant was present, as his accomplice was not transferred from the detention center.Appellant was also without his counsel.The victim saw appellant in the courtroom, but before the hearing could begin it was continued until March 25, 1977.

At trial, appellant moved to have the identification made by Kretovich suppressed due to the March 18th encounter.His motion was denied.After a jury trial, appellant was sentenced on December 12, 1977.Although appellant's trial counsel timely filed an appeal to this Court, counsel never filed an appeal brief.Therefore, this Court entered an order of non pros to appellant's initial appeal.On January 31, 1985, appellant was granted relief under the Post Conviction Hearing Act, "to the extent of permitting the defendant(appellant) to pursue direct appeal nunc pro tunc from his judgment of sentence."

Appellant first contends that the trial court erred by not granting his motion to suppress the victim's identification testimony.This issue turns on whether the March 18, 1977 encounter between the victim and appellant at the postponed preliminary hearing was so suggestive that Kretovich's identification testimony became unreliable.There is no indication in the record that the victim's testimony was rendered unreliable due to the encounter.

The United States Supreme Court addressed the suggestibility issue in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401(1972):

As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Later in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140(1977), the Court said, "We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony...."This Court adopted a similar position in Commonwealth v. Ferguson, 327 Pa.Super. 305, 313, 475 A.2d 810, 814(1984).

[W]e employ a totality of the circumstances test when determining the reliability of a challenged identification; and, specifically, we consider the following factors:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

In the case before us, Kretovich was no less than positive in his identification of appellant as one of his two attackers.Kretovich had ample time during the commission of the crime to see both men.The record supports a finding of reliability.Any taint of suggestion caused by the March 18, 1977 encounter was far outweighed by the circumstances that led to an unquestionable identification of appellant.

In conjunction with the aforesaid reasoning we also conclude that appellant was not denied effective assistance of counsel.As indicated, the identification of appellant by Kretovich was extremely reliable.Had circumstances been different and the March 18, 1977 hearing not been continued, there may have been some merit to appellant's contention.However, we can see absolutely no prejudice derived from counsel's absence at the postponed March 18, 1977 hearing.Absent prejudice to appellant, there can be no claim of ineffectiveness of counsel.Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837(1985).

Appellant, in his final assignment of error, contends that the trial court abused its discretion by ruling that his prior robbery convictions could be used for impeachment.Faced with that ruling, appellant declined to take the stand.The admissibility of evidence of prior convictions for the impeachment of a defendant witness is within the sound discretion of the trial judge, whose decision thereon will not be reversed absent an abuse of discretion.Commonwealth v. Kearse, 326 Pa.Super. 1, 6, 473 A.2d 577, 580(1984).In exercising its discretion, the trial court must consider the factors enunciated in Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367(1978):

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution's case and the prosecution's need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant's credibility.(footnote omitted).

Furthermore, it is the prosecution's burden to show that the need for prior conviction evidence overcomes its inherent potential for prejudice.Id.

The Commonwealth asserts that appellant's failure to testify at his trial precludes appellate review of his Bighum claim, citing the recent United States Supreme Court opinion in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443(1984).This assertion is an incorrect statement of the law of Pennsylvania.The...