Com. v. Vanderlin

Decision Date18 September 1990
Citation398 Pa.Super. 21,580 A.2d 820
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. James E. VANDERLIN, Jr., Appellant (Two Cases).
CourtPennsylvania Superior Court

David Crowley, Asst. Public Defender, Mercer, for appellant.

Ray F. Gricar, Dist. Atty., Bellefonte, for the Com., appellee.

Before CAVANAUGH, BECK and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Centre County. We affirm.

The record indicates that on November 27, 1988, at approximately 5:00 p.m., J.Q. was attacked and sexually assaulted. J.Q. was walking home from work when she noticed a dark-haired man of average build and of average height heading in her direction. (N.T., May 24, 1989, at 17, 30-31). Shortly thereafter, J.Q. was attacked. The perpetrator put his arm around J.Q.'s neck from behind and told her that he wanted to see her breasts. Id. He then unbuttoned her blouse, tore open her bra, and took off her pants and her underpants. Id. at 18. J.Q. testified that her attacker pulled her down to her knees and fondled her. Id. She stated that he kissed her all over her body and that his hands were "stuck up in my vagina and ... on my breasts and stomach." Id. at 19. See also id. at 21-22. J.Q. only glanced at her attacker's face because he covered her eyes with her work apron. Id. at 18.

The perpetrator removed his clothing and told J.Q. to fondle him. She refused. He wanted J.Q. to engage in oral sex but she again refused. The attacker then offered J.Q. a choice: "he was either going to take all my clothes from me, he was going to rape me or kill me." Id. at 19. See also id. at 22. In response, J.Q. fondled the attacker. Id. at 20. She testified that she thought he ejaculated. Id. The perpetrator threatened J.Q. during the attack. She believed that he was going to kill her. Id.

J.Q. testified that the assailant kissed her on the mouth and that she could tell that he was a smoker. Id. She also said that she felt his beard on her chest and that he wore glasses. Id. at 21. 1 J.Q. repeatedly testified that she remembered her assailant's voice. She said that he spoke to her in a "scratchy whisper" throughout the twenty minute assault. Id. at 21.

Although J.Q. refused to engage in oral sex with her attacker, he put his penis on her mouth so that they were touching. Id. at 21-22, 39-40. The perpetrator kissed and fondled J.Q. some more "and when he went to leave [he] rolled me back onto my stomach and told me not to look up or he was going to kill me." Id. at 22. The attacker then fled. J.Q. walked home and reported the incident to her mother and to the police.

At approximately 7:00 p.m. on November 27, 1988, the appellant, James Vanderlin, dialed "911" and reached the Centre County Emergency Communications Center. The dispatcher traced Vanderlin's call to an apartment complex located in proximity to the crime scene. Id. at 55-56. The call was automatically recorded. Id. at 49-50. During his conversation with the dispatcher, Vanderlin asked whether an attempted rape had occurred near the high school track. When the dispatcher replied that he had not yet received such a report, Vanderlin confessed to the commission of the crime. See id. at 52-55.

Investigator Thomas Jordan obtained a copy of the tape recording and played it to J.Q. two times. Id. at 27, 81-83. J.Q. identified the voice as that of her attacker. Id. at 81-83. Thereafter, Jordan played the tape over the radio and television. Several persons contacted Jordan and identified the caller's voice as Vanderlin's. 2 Id. at 83-85.

On January 20, 1989, Vanderlin was arrested and charged with Criminal Attempt (Rape), Criminal Attempt (Involuntary Deviate Sexual Intercourse), Indecent Assault, Indecent Exposure, Unlawful Restraint and False Imprisonment. On March 23, 1989, Vanderlin filed a motion to suppress the identification testimony of the victim, which was denied. He also filed motions in limine, which were denied. Following a jury trial, Vanderlin was convicted of all charges. His post-verdict motions were denied. Vanderlin was sentenced to an incarceration period of seven to fifteen years for Attempted Rape and a consecutive period of three to ten years for Attempted Involuntary Deviate Sexual Intercourse. Vanderlin filed a motion to modify his sentence for Attempted Rape. Realizing that the sentence initially imposed for Attempted Rape was illegal, the trial judge re-sentenced Vanderlin to five to ten years for Attempted Rape and a consecutive term of five to ten years for Attempted Involuntary Deviate Sexual Intercourse. 3 Vanderlin filed another motion to modify sentence, which was denied. This appeal followed.

Vanderlin has preserved the following issues for our review:

I. Whether the trial court erred in failing to suppress the one-on-one identification of the attacker's voice from a tape recorded purported confession.

II. Whether the evidence was insufficient to establish that defendant took a substantial step toward the completion of the crime of attempted rape.

III. Whether the guilty verdict for attempted rape was against the weight of the evidence as the evidence did not preponderate that defendant took a substantial step toward the completion of the crime of attempted rape.

IV. Whether the trial court erred in not merging the offenses of attempted rape and attempted involuntary deviate sexual intercourse for sentencing purposes.

V. Whether the trial court erred and violated defendant's protections against double jeopardy under the United States and Pennsylvania Constitutions by sua sponte modifying the judgment of sentence passed upon him in open court four days previously and increasing his minimum period of incarceration for the offense of attempted involuntary deviate sexual intercourse.

See Appellant's brief, at 4. We will address each issue seriatim.

Vanderlin's first contention is that the trial court erred in failing to suppress J.Q.'s testimony identifying the voice on the tape recorded message as that of her attacker. Vanderlin asserts that the method employed by Investigator Jordan to procure the identification testimony from J.Q. was unnecessarily suggestive and unreliable under the "totality of the circumstances" test. Vanderlin claims that his case was prejudiced by the admission of the identification testimony. We disagree.

At the onset, we note our standard of review in considering an appeal from the denial of a motion to suppress. Our role "is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In making this determination,

we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. (Citation omitted). Moreover, when the evidence viewed in this manner supports the factual finding of the suppression court this Honorable Court can reverse only if there is an error in the legal conclusion drawn from those factual findings.

Reddix, 355 Pa.Super. at 518, 513 A.2d at 1042; Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987) (this Court may reverse the suppression court only if its legal conclusions, drawn from the facts in the record, are erroneous).

The instant case represents a somewhat novel situation, and case law dealing with voice identification from a tape recorded message is sparse. However, we have reviewed the analogous case law and conclude that the trial court did not err in allowing J.Q.'s identification testimony.

The parties adequately cite the pertinent law; both Vanderlin and the Commonwealth correctly refer to Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) for the proposition that the reliability of an identification is the linch pin in determining whether the identification testimony is admissible. Courts must look to the totality of the circumstances to determine whether an identification is reliable. Id. at 114, 97 S.Ct. at 2253. 4

As both the Pennsylvania Supreme Court and this Court have recognized, the suggestiveness of police tactics in the identification process is one factor to consider in determining whether to admit identification evidence, but suggestiveness alone will not necessarily cause the evidence to be excluded. See Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979) ("Suggestiveness alone does not warrant exclusion. Instead '[i]t is the likelihood of misidentification which violates a defendant's right to due process, and it is this which [is] the basis of the exclusion of evidence.' " (citations omitted)); Commonwealth v. Johnson, 301 Pa.Super. 13, 446 A.2d 1311 (1982) (accord), aff'd in part, vacated in part 499 Pa. 380, 453 A.2d 922 (1982). The United States Supreme Court has stated that a pre-trial identification will not be suppressed unless it can be shown that the identification procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see Commonwealth v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312 (1982).

In the instant case, the trial court relied on Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983). In Thompkins, this Court applied the "totality of the circumstances" test and considered the Manson factors in determining the reliability of an identification. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

The Thompkins Court stated:

The essential criteria in determining whether or not evidence of pre-trial identification is...

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