Commonwealth v. Hall

• Decision Date: 25 March 1974
• Citation: Commonwealth v. Hall, 456 Pa. 243, 317 A.2d 891 (Pa. 1974)
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ronald Edward HALL, Appellant.
• Court: Pennsylvania Supreme Court

317 A.2d 891

456 Pa. 243

COMMONWEALTH of Pennsylvania, Appellee, v. Ronald Edward HALL, Appellant.

Supreme Court of Pennsylvania.

March 25, 1974.

Richard W. Rogers, Rogers & Smith, Charles J. King, Jr. Norristown, for appellant.

Milton O. Moss, Dist. Atty., William T. Nicholas, First Asst. Dist Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief Appeals Div., J. David Bean, Asst. Dist. Atty., Norristown for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

MANDERINO Justice.

The appellant, Ronald E. Hall, was found guilty by a jury of assault and battery with intent to ravish, and burglary. Post-trial motions were denied, and concurrent sentences of one to three years imprisonment were imposed for each offense. The Superior Court affirmed the judgment of sentence. Commonwealth v. Hall, 221 Pa.Super. 776, 291 A.2d 897 (1972). We granted appellant's petition for allowance of an appeal.

The appellant raises three issues in this appeal: (1) whether the out-of-court identification testimony should have been suppressed; (2) whether the trial court's conduct during the pretrial suppression hearing violated due process of law; and (3) whether the trial court erred in refusing to charge the jury as requested by the appellant in his points for charge on the pitfalls of identification testimony. We find no merit on the assignments of error and, therefore, affirm the judgment of sentence.

From the testimony at the suppression hearing, the following facts can be reasonably inferred. Shortly after noon, on July 8, 1969, Bernadette Hathaway, victim of the charged offenses, was alone in her home. She had just returned from a visit to her doctor, who had told her to remain in bed during her pregnancy or she might lose her baby. Her three-year-old daughter had taken their small puppy outside. She was folding clothes on her kitchen table when a man appeared at the door. He was cleanly dressed and did not frighten her until he entered and began advancing toward her. He told her she would not get hurt if she did not say anything. The man asked her if she had a bathroom. She began moving as she pointed to the bathroom. He grabbed her and pinned her arms to her side and began making sexual advances. She pleaded with the man to let her alone since she was carrying a child and was sick. She told him she would lose her baby if she got upset.

The man ignored her pleas. He forced her from the kitchen into the dining room and onto a couch. He got on top of her, began kissing her and moving his body against hers as he unbuttoned her blouse. At this point, the victim and her attacker heard the victim's daughter making a racket at the back door. The daughter was hollering at her puppy who would not come into the house. The attacker became frightened and left the dining room. The victim fled and ran into a neighbor's yard. The police were called, but when they arrived the man could not be found.

The victim who had observed her attacker for 'no less than ten minutes' gave the following description to the police:

A colored male, 19 to 23 years of age. Young and good-looking. Six feet one to six feet three. Thin built. Kinky hair, Afro style, high. Smooth skin. Clean shaven. Dark brown complexion. Oval face. Clean clothes. Green trousers, green pants. Black shoes. Either red shirt short sleeves, or red and blue plaid.'

The victim called him husband at work and he returned home. She described the man to her husband. They discussed the incident on various occasions during the next three months.

On October 18, 1969, approximately three months after the incident, the victim's husband saw a man, the appellant, near their home who fitted the description his wife had given. He rushed home and woke his wife and daughter who were napping. He told his wife that he had seen someone who fitted the description of her attacker and asked her to come and look at the man. Cruising in their car, a short distance from their home, the victim saw the man her husband had seen earlier. The appellant was walking in a park when seen by the victim from the car. Since she did not have a full front view of the man's face, she was not positive but she told her husband that he seemed to be her attacker. Her husband called the police from a nearby public phone booth and then continued on foot to follow the appellant. The victim remained in the car with her daughter waiting for the police. When the police arrived, the victim pointed out the direction in which her husband had followed the appellant. The police drove in the indicated direction. A short time later, the victim decided to follow in her car rather than sit and wait.

The police met the victim's husband and shortly thereafter, the appellant came out of the drugstore, and was pointed out by the husband. The police told the appellant that he fit the description of a man who had been involved in a crime and asked the appellant to go with them. The appellant agreed to go with the police, answering 'Sure, I'll go with you.'

The police, the appellant, and the victim's husband, were in the police car about to return to where the victim had remained in her car, when the victim who had decided to follow the police, arrived on the scene. The victim got out of her car and saw the appellant about ten feet away. She immediately recognized him but was unable to speak when questioned because she became frightened and shocked at seeing her attracker again. The appellant said she seemed hysterical and upset. One of the police officers then suggested that everyone return to the Township of Lower Merion. The reason for the suggestion was that the police officers, who were from Lower Merion Township, had crossed over the township line when they were looking for the victim's husband. The police wanted to return to their own municipality. The police took the appellant in the police car and told him what the matter was about as they were returning to the Township of Lower Merion. The victim, her husband and daughter followed in their car. They drove a short distance and parked in the Township of Lower Merion, near where the police first talked with the victim after they were called by the victim's husband. One of the police officers went over to the victim and asked if she was controlled enough to speak. She said yes and told the officer that the appellant was the man who attacked her. This occurred before the victim viewed the appellant at the new location. He was still in the police car. The victim was still frightened because she feared for her husband and three-year-old daughter who were present. She was asked to view the appellant again. She did and answered affirmatively when asked several times if she was positively sure. The appellant was then taken to the police station. The victim's baby was born about three months later.

During the trial, the victim testified about the circumstances surrounding the out-of-court identification and also identified the appellant in court. The police and her husband corroborated her testimony.

The appellant denied that he had attacked the victim. He testified that at the time of the incident, on July 8, 1969, he was with a friend in Philadelphia looking for work because he had been fired from his job on July 7, 1969, the day before the incident. The prosecution presented time records showing that the appellant had begun work on July 8, 1969 at 1:30 p.m., about an hour after the alleged incident. The appellant a supervisor at the playground where appellant worked testified that the appellant was at work and had not been fired on July 7, 1969.

The appellant first argues that the out-of-court identification should have been suppressed because the police the police did not have probable cause to arrest the appellant. We disagree. The first encounter between the police and the appellant occurred outside the drugstore. There was no seizure of the appellant by the police at that time. The appellant admitted that he was asked to go with the police and he agreed. Although they got into the police car and drove about fifteen feet, they did not go anywhere because the victim arrived on the scene. During the suppression hearing, the appellant was asked about this encounter:

'Q. Isn't it true, Mr. Hall, that the officer, when he asked you, when you got out of the drugstore, asked you to go with him, as you fit the description of a man who had been involved in a crime? And didn't you say to him, 'Sure, I'll go with you?' Didn't you voluntarily go with him?

A. Yes, I voluntarily went with him. Yes.'

There was thus no seizure of the...