Commonwealth v. Sexton
| Decision Date | 01 May 1979 |
| Citation | 485 Pa. 17,400 A.2d 1289 |
| Parties | COMMONWEALTH of Pennsylvania v. Warren SEXTON, Appellee. |
| Court | Pennsylvania Supreme Court |
Argued Jan. 12, 1979.
Steven H. Goldblatt, Deputy Dist. Atty., Gaile McLaughlin Barthold, Asst. Dist. Atty., Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Asst. Public Defender, Steven A. Monley, Asst. Public Defender, Philadelphia, for appellee.
Before EAGEN C. J., and ROBERTS, NIX, MANDERINO and LARSEN, JJ.
The pivotal issue in this case is whether an identification made during a certification hearing [1] should be excluded because of the court's denial of a prior request by the defense for a pre-hearing lineup. We granted the Commonwealth's request for review to answer the difficult question as to under what circumstances, if any, an accused is entitled to a pre-hearing lineup, and the subsidiary question in the event that there are circumstances when such lineups are required upon demand, the remedy for failing to accede to such request.
The Commonwealth's evidence at trial established that on December 21, 1974, appellee and a friend entered a food market in the City of Philadelphia. He browsed about the store for a short period of time, then approached the cashier, pulled a gun and demanded the money in the register. After obtaining the contents of the cash drawer, appellee ran from the store and was followed by Mr Weinstein who unsuccessfully attempted to overtake him. During the chase, appellee fired a shot in the direction of his pursuer. Weinstein testified that he observed appellee for more than a minute in the store before appellee approached the cashier. Mr. Weinstein's identification of appellee at trial as the person who robbed his store and fired the shot at him was the only evidence connecting appellee to the crime. In response, the appellee sought to establish the defense of alibi.
In the course of the certification hearing, Weinstein first identified appellee as the perpetrator of the robbery. Prior to the hearing, appellee filed a motion requesting a lineup, which request was denied at the beginning of the hearing before Mr Weinstein entered the courtroom. Appellee, subsequently moved to suppress the certification hearing identification and the in-court identification, alleging that the certification identification was unnecessarily suggestive and tainted the in-court identification at trial. The trial court concluded that there was no constitutional right to a pre-trial lineup and that the denial of the request for a lineup in this case did not constitute an abuse of discretion. In the Superior Court's opinion announcing its judgment, [2] Judge (now President Judge) Cercone, although indicating that the denial of the request for a pre-hearing lineup under the facts of this case amounted to an abuse of discretion, [3] proceeded to also hold that the identification at the certification hearing was unduly suggestive and thus tainted. Commonwealth v. Sexton, 246 Pa.Super. 30, 36, 369 A.2d 794, 797 (1977). Consequently, that court directed that the cause be remanded to determine whether the in-court identification at trial was tainted by the earlier one-on-one confrontation at the certification hearing. We granted review because of the troublesome questions raised in this appeal, as evidenced by the different views expressed by the various judges who have considered the problems.
At the outset, it is important to separate the question of the propriety of the court's refusal to permit the pre-hearing lineup and the asserted suggestiveness of the certification hearing identification.
The majority of the Superior Court, in perceiving a need to provide a remedy in this case, mistakenly focused upon the certification hearing identification and failed to recognize the full significance of the earlier ruling denying the request for a pre-hearing lineup. If we were to consider only the certification hearing identification, it must be conceded that there was nothing unique that exacerbated the suggestiveness normally attending such procedures. There are many cases in the federal courts, where the initial one-on-one confrontation between an accused and an identifying witness occurs at an in-court preliminary hearing, which have held the identification procedures not to be unduly suggestive and the identification evidence derived therefrom to be reliable. See, e. g., Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240 (1968), Cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); United States v. Davis, 407 F.2d 846, 847 (4th Cir. 1969); United States v. Freie, 545 F.2d 1217, 1224 (9th Cir. 1976); Haberstroh v. Montanye, 362 F.Supp. 838 (W.D.N.Y.1973), Affirmed 493 F.2d 483 (2d Cir. 1974).
The suggestive quality arising from a courtroom confrontation is created by the fact that the accused is clearly designated by his role in the proceeding as the suspected perpetrator prior to the identification. The type of inherent suggestiveness present in all one-to-one confrontations is present, and to some extent magnified, where the identification is made in open court. Commonwealth v. Fant, 480 Pa. 586, 591, 391 A.2d 1040, 1043 (1978), Commonwealth v. Fowler, 466 Pa. 198, 203-04, 352 A.2d 17, 19-20 (1976). See also United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1350 (3d Cir. 1972), Cert. denied sub. nom. Riffert v. Johnson, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974). Nevertheless, the key in determining the admissibility of such evidence is not simply the suggestiveness of the circumstances surrounding the identification but rather the likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972):
It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster (, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402). Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall (, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) makes clear, the admission of evidence of a showup without more does not violate due process. Id. at 198, 93 S.Ct. at 381-382.
Thus the suggestiveness of the confrontation is only a factor to be considered in determining the reliability of the identification evidence. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Unlike those instances where we have determined that a fair trial required the exclusion of the evidence, See, e. g., Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978); Commonwealth v. Fant, supra, we cannot agree that viewing the totality of the circumstances surrounding the certification hearing identification in this case was so unreliable as to offend due process. [4] Thus, if we were Only presented with the question of the identification evidence, we would have little difficulty in finding that appellee was not entitled to relief.
The difficult aspect of this case is presented by the court's refusal to grant appellee's timely request for a pre-hearing lineup. We can perceive of no situation where such a request would be more warranted. The sole evidence connecting appellee to this crime was the identification of Mr. Weinstein, [5] who had no knowledge of appellee before the incident, observed the culprit briefly before and during the crime, had no contact with the appellee between the arrest and the certification hearing, and had not been presented with an opportunity of a photographic identification prior to the hearing confrontation. Although, rejecting appellee's claim of an abuse of discretion, the trial judge conceded that a "lineup might have been best in this case." The dissenters in the Superior Court characterized the denial of the application as "certainly injudicious" and being without "a very good reason for doing so." Commonwealth v. Sexton, supra, 246 Pa.Super. at 38, 369 A.2d at 799 (dissenting opinion). The trial court justified rejecting the abuse of discretion contention on the ground that there is no constitutional right to a pre-trial lineup. The Superior Court dissenters acknowledged the abuse of discretion but concluded that there was no remedy available. We disagree with both.
While we concede that under the present state of the law it has not been determined that an accused has a constitutional right to a lineup, See Moore v. Illinois, 434 U.S. 220, 230-31 n.5, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975), it does not follow, as the trial court suggests, that a judge can arbitrarily and capriciously deny such a request. Although the United States Supreme Court has yet to address the question of the defendant's constitutional right to a pre-trial lineup, it has, nevertheless, recognized the importance that such a procedure may have in ameliorating the suggestiveness of a courtroom confrontation and in insuring the reliability of identification evidence. See Moore v. Illinois,supra at 230-31 n.5, 98 S.Ct. 458 and accompanying text.
The fact that a decision is left to the sound discretion of the court does not place the propriety of the ruling beyond review. Where it is shown that his decision is without justification and that the accused has been substantially harmed thereby, it is incumbent upon the reviewing court to provide a remedy commensurate to the harm sustained by the party receiving the adverse ruling.
We also do not accept the view of the Superior Court...
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