Commonwealth v. Foster

• Decision Date: 22 June 1971
• Parties: COMMONWEALTH of Pennsylvania v. James FOSTER, a/k/a James Lee, Appellant.
• Court: Pennsylvania Superior Court

280 A.2d 602

219 Pa.Super. 127

COMMONWEALTH of Pennsylvania v. James FOSTER, a/k/a James Lee, Appellant.

Superior Court of Pennsylvania.

June 22, 1971.

Application for Allocatur Denied Oct. 26, 1971.

Chris Vlachos, Canonsburg, (submitted), for appellant.

Jess D. Costa, Dist. Atty., Jack H. France, Asst. Dist. Atty Washington (submitted), for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

CERCONE, Judge:

The appellant, James Foster, was charged with the crimes of armed robbery, pointing fire arms, and carrying a concealed weapon arising out of the robbery of a supermarket in Donora Pennsylvania on January 27, 1969. After trial before a judge and jury, foster was found guilty on all three charges. He made motions for new trial and in arrest of judgment before the lower court and from the denial of these motions has appealed to our court. Several grounds for error have been assigned.

Appellant first claims that four witnesses who identified him as being one of the men who participated in the holdup had viewed him after the crime in improper lineups and other confrontations at the police station and at his preliminary hearing. He states that witnesses were brought to view him alone in his cell and that he had no counsel during these confrontations. While the identification evidence of these witnesses was not challenged in a pre-trial motion to suppress, defendant's counsel argued at trial against the admission of identification testimony presented by the witnesses in question and later moved that such testimony be stricken from the record. The trial judge denied these motions. We believe his actions were proper.

The Supreme Court of the United States established guidelines for lineups and other pre-trial confrontations in the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, both decided on June 12, 1967. In these cases, the Court pointed out that the relevant inquiry of the appellate court is whether the in-court identification was tainted by the improper out-of-court confrontations. Often, as was the situation in Wade and Gilbert, supra, a case may be remanded for further hearings in the lower court on this issue. This action is not necessary here. The lower court in the instant case made certain that there was an inquiry, on the record, directed to each witness concerning the exact basis of their identification of Foster at the time of trial. Each of the witnesses who provided identification testimony stated unequivocally that they were relying exclusively on their viewing of the defendant at the scene of the holdup in making their in-court identifications. They each stated that they had ample opportunity to see the men who perpetrated the crime, and that on that basis alone, they were sure that Foster was one of those men. Under the circumstances, we feel Wade and Gilbert, supra, have been satisfied.

Our review of the facts of the pre-trial confrontations which occurred leads us to reject the further argument of appellant that they were so unnecessarily suggestive, and so conductive to irreparable mistaken identification, that there was a denial of due process. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Four witnesses testified that they could identify Foster as having been one of the robbers. One of the witnesses, the head of the meat department in the market, did not see the defendant between the time of the robbery and the time of the trial. However, he was certain that Foster was a participant in the crime.

A second witness was a police officer who testified he was off duty and was a customer in the store at the time of the robbery. He testified that the defendant pointed a gun at him and was close to him throughout the time of the robbery. He further stated that he had made a special effort to commit the robber's facial characteristics to memory so he could identify him later, if possible. The officer stated that his identification at trial was based entirely on his memory of defendant at the time of the crime. We find the witness credible because his occupation and training make it likely that he would be more observant and more aware of the importance of identification than the average person. The fact that the officer later saw the defendant in a cell in his own station house, in the course of his duties in our opinion, would not lead to undue suggestion or irreparable mistaken identification.

The third witness to provide positive identification testimony was the cashier who gave the money to the robbers. She stated that based solely upon her sight of him the night of the crime she would never forget the fact of the defendant. She did not see defendant at the jail, but did see him at the preliminary hearing and then briefly on a later date when the instant case was apparently scheduled and then postponed. Defendant has offered no reasoning to support an argument that these two meetings were so unduly suggestive as to lead to mistaken identification and this court finds no...