Com. v. Swinson

• Decision Date: 16 June 1993
• Citation: 426 Pa.Super. 167,626 A.2d 627
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James SWINSON, Appellant.
• Court: Pennsylvania Superior Court

Page 627

626 A.2d 627

426 Pa.Super. 167

COMMONWEALTH of Pennsylvania, Appellee, v. James SWINSON, Appellant.

Superior Court of Pennsylvania.

Submitted March 29, 1993.

Filed June 16, 1993.

Fred A. Faber, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty by a jury of robbery, ¹ theft, ² receiving stolen property, ³ and criminal conspiracy. ⁴ Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to concurrent terms of not less than three (3) years nor more than ten (10) years for the crimes of robbery and criminal conspiracy. ⁵ A direct appeal was filed and dismissed by this Court without prejudice to Appellant's rights under the Post Conviction Relief Act, ⁶ as a result of appellate counsel's failure to file a brief for Appellant. On August 26, 1992, Appellant, through court appointed counsel, filed a petition pursuant to the Post Conviction Relief Act. Appellant's petition was granted and Appellant's right to appeal from the judgment of sentence entered on August 22, 1989, was reinstated nunc pro tunc. This appeal followed. We affirm.

The facts and procedural history are ably summarized by the trial court as follows:

On November 30, 1987, at approximately 8:00 P.M., security guard John R. Holland was driving in the vicinity of 58th and Master Streets, Philadelphia, Pa. Needing to urinate, Mr. Holland stopped his car by the curb, exited the car and opened the trunk to shield himself from the view of others. Inside the trunk were tools and two handguns, a .25 caliber pistol and a .38 caliber Derringer. Holland heard a noise and the trunk of the car was slammed against his chest. He looked up and saw four black males standing around him. Holland positively identified two of those men as [defendant] Mark Freeman and [Appellant] James Swinson.

[Appellant] locked his arm around Holland and removed a wallet from his jacket pocket which contained his driver's license and $70. Freeman took three rings from his fingers. Freeman then indicated that they should take the guns. The four men fled with the wallet and the two handguns. [Appellant] had the .25 caliber pistol. Holland sustained no injuries. Holland reported the incident to the police and gave accurate descriptions of both Freeman and [Appellant]. He also supplied the police with receipts for the two handguns.

On December 3, 1987, at approximately 11:40 A.M., Arthur Klein was inside his shop, located at 4019 W. Girard Avenue [Philadelphia]. Klein was in the business of leasing properties. [Defendant Freeman and Appellant] were admitted by Klein. They asked to view an apartment that he had for rent. As Klein led the pair to a desk at the rear of the shop, he was attacked from behind. [Appellant] started punching Klein in the face; Freeman held a .25 caliber pistol to his head. Klein, who had a gun himself, shot Freeman. Freeman fell to the floor. Klein took Freeman's pistol. During a struggle with [Appellant], Klein dropped Freeman's pistol onto a shelf, but retained hold of his own gun. He was able to shoot [Appellant], who fell to the floor. [Freeman and Appellant] were arrested.

The .25 caliber pistol which had been wielded by Freeman was the same one which had been stolen from Holland on November 30, 1987.

On June 2, 1988, Detective George E. Myers, who was in charge of the Klein investigation, interviewed Holland in his home regarding the theft of this handgun the previous November. Later that evening, Myers returned to Holland's home with two photographic arrays, one containing the picture of Freeman and one containing the picture of [Appellant]. [Each photographic array contained eight pictures of black males.] Holland identified the photos of both [Freeman and Appellant.] On June 3, 1988, Holland came to City Hall to testify with respect to the Klein matter. As soon as he entered the courtroom, he saw [Freeman and Appellant] and recognized them. He reported that fact to a district attorney in the courtroom and to Detective Myers, who was out in the hallway. Holland again looked at the photo arrays and once more identified [Freeman and Appellant.]

Trial Court Opinion, September 27, 1989, at pp. 2-3. Subsequently, Appellant and Freeman were arrested in connection with the November 30, 1987, robbery of Holland. Thereafter, Holland identified Appellant and Freeman in court at the preliminary hearing in the instant matter.

On appeal, Appellant presents the following questions for review:

1. Whether the court below erred by allowing into evidence [sic] concerning out-of-court identifications of Appellant and his Co-Defendant, and be [sic] allowing the Complaintant [sic] to make an in-court identification[?]

2. Whether the court below erred by allowing into evidence testimony about other crimes alleged to have been committed by Appellant and his Co-Defendant[?]

3. Whether the court below erred in permitting into evidence the testimony of Police Detective John Peterson, who read to the jury a statement purportedly given to him by the complaintant [sic] and was such error compounded by the court's failure to give cautionary instructions as to the limited purpose for which such testimony, if admissible at all, could be used[?]

4. Was trial counsel ineffective for failing to request the cautionary instructions referred to in question 3, i.e., that the "prior consistent statement" could be considered in assessing credibility only, and could not be considered as substantive evidence[?]

Appellant's brief at p. 2. ⁷

Appellant first argues that the trial court erred in denying his motion to suppress the identifications of him by Mr. Holland. Appellant contends that the June 2, 1988, photo identification by Mr. Holland was unduly suggestive and unreliable and that it rendered the subsequent in-court identification of him inadmissible. Specifically, Appellant asserts that Mr. Holland was permitted to examine front and side views when examining the photo array, and that the side view photographs contained biographical information, which included police photo numbers, age, names, and crimes previously charged. Thus, Appellant argues that it was clear to Mr. Holland that the photographs were "mug shots." Appellant also contends that Mr. Holland was only able to identify his photo from the side view, which he alleges is impermissible due to the biographical information printed thereon. Appellant concludes that, because the initial photographic array was unduly suggestive, the robbery occurred at night and the area was dark, the identification at trial did not have an independent basis from the tainted out-of-court procedure. Accordingly, the trial court erred in permitting the identification testimony of Mr. Holland to be used at trial.

In reviewing claims of suggestive identification procedures, and whether identifications resulting from such procedures are admissible, " 'we must determine whether the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process.' " Commonwealth v. Ennis, 394 Pa.Super. 1, 14, 574 A.2d 1116, 1122 (1990) (Quoting Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987), alloc. den., 517 Pa. 616, 538 A.2d 498). See also, Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989) (pictorial identification is unduly suggestive when it gives rise to a substantial likelihood of irreparable misidentification). Our scope of review in evaluating the trial court's denial of Appellant's motion to suppress has been summarized as follows:

... In reviewing this ruling our initial task is to determine whether the factual findings are supported by the record. "In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted." ... If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are in error ...[.] [Citations omitted.]

Commonwealth v. Henry, 410 Pa.Super. 324, 327, 599 A.2d 1321, 1322 (1991), (quoting Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 694-95 (1986)). "It is, however, exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony." Commonwealth v. Brinkley, 423 Pa.Super. 289, 291, 620 A.2d 1226, 1227 (1993) (quoting Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982) overruled on other grounds in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983)).

In the instant case, the defense presented no witnesses at the suppression hearing and the Commonwealth's evidence remained uncontradicted. At the hearing, Holland testified that it was dark when he was accosted by three or four black men. However, he further testified that the incident lasted approximately thirty seconds and that, after being grabbed from behind, he was spun around so that he was face to face with Appellant, at which point he clearly was able to view Appellant's face. Holland also stated that he viewed the eight photographs on June 2, 1988, at his home, and on June 3, 1988, in the hallway at the courthouse while testifying in the Klein case. On both occasions, he identified Appellant; on both occasions, he signed and dated the back of the photograph. Holland and Detective Myers both testified that Detective Myers did not in any way suggest he had a suspect that might be in any of the photo spreads shown to Holland, nor that any of the men pictured in the photographs were to be present the following day in the Klein case. Holland and Detective Myers ...