Commonwealth v. Woods
| Decision Date | 11 January 1980 |
| Citation | 275 Pa.Super. 392,418 A.2d 1346 |
| Parties | COMMONWEALTH of Pennsylvania v. Richard WOODS, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted June 27, 1978. [Copyrighted Material Omitted]
A. Benjamin Johnson, Jr., Philadelphia, for appellant.
Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Division Philadelphia, for Commonwealth, appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
Appellant Richard Woods, and his two co-defendants, were convicted of two counts of rape, robbery, burglary, conspiracy, and carrying a firearm on a public street, at a jury trial in the Court of Common Pleas of Philadelphia County. Post-trial motions were denied and appellant was sentenced to serve a prison term of not less than 15 to not more than 40 years. We affirm the decision of the lower court.
One night in January, 1975, three black males entered the home of Mrs Delores Calbert and her fourteen year old daughter, Lisa. The men raped both women and robbed the family at gun point. Both Mrs. Calbert and Lisa testified that appellant was one of the three men who participated in these crimes. Appellant's motion to suppress identification testimony was granted as to a pre-arrest photographic show-up, but denied as to all other pre-arrest and subsequent identification evidence. The jury found appellant guilty on all counts.
On appeal, appellant raises eight issues for our review. Although not all of these issues were specifically presented in written post-trial motions, all eight issues were briefed and considered by the lower court. Since the law in effect at the time of this appeal allowed us to consider these issues due to the fact that it was prior to Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), we address the merits of each issue presented.
First appellant argues that the lower court should have granted him a discharge for the failure of the Commonwealth to bring him to trial within 180 days after the filing of the complaint pursuant to Pa.R.Crim.P. 1100(a)(2). [1] Although appellant's argument seems to have merit at first glance, [2] the fatal flaw in the argument is that appellant never filed a petition to dismiss pursuant to Rule 1100(f) [3] in order to preserve the claim for our review. As our court stated in Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388, 1389 (1978):
In this case, the Commonwealth filed a Petition to Extend pursuant to Pa.R.Crim.P. 1100(c) [4] , but withdrew it the next day since it felt appellant had unconditionally waived his Rule 1100 rights. [5] Therefore, appellant did not have a full opportunity to contest the Commonwealth's petition. However, appellant still should have petitioned for dismissal under Rule 1100(f) and his failure to do so did not give the lower court the opportunity to decide the issue prior to trial. The issue is waived. Commonwealth v. Davis, supra.
Second, appellant argues that the lower court erred by not granting his motion to suppress the in-court identifications made by Delores Calbert and her daughter, Lisa. Appellant contends that there was no origin, independent of a photographic show-up which was suppressed, to support the in-court identification.
At the hearing on the motion to suppress, Mrs. Calbert testified as follows concerning her view of appellant:
"Q. You said it was Mr. Woods. How do you know it was Woods?
A. It was the third one on the end. Bernard Miller and James Miller was with me, so it had to be Woods (who was with Lisa.)
Q. Now, I'm asking you now, did you have an opportunity at the time when he was in the hallway to see his face?
A. I seen him go into the room and I see him hand Bernard Miller the gun. He had a gun and James Miller had a gun.
Q. When did you see him hand the gun to Bernard?
A. Pardon me.
Q. When did you see him give the gun-
A. As he entered my daughter's room with my daughter.
Q. Was he facing you?
A. Yes, yes, he was. He turned around to face me while I turned around to see what was going on."
She further testified that at the time she saw appellant take her daughter into her room, he was standing in the hall directly under an overhead light, which gave her a better view of appellant.
As to events that took place later, Mrs. Calbert testified that:
Upon review of this testimony, we agree with the trial court judge that Mrs. Calbert had a source independent of the suggestive pre-trial photographic display upon which she could have based her in-court identification. She testified that she saw appellant, at least twice, in the hallway of her home under a ceiling light, which was lit, and there is no indication that her identification would have been unreliable. See Manson v. Braithewaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Our cases have held that a view of an assailant for a period as short as 10 seconds "would seem like an eternity" in various situations, which certainly could have been the case when Mrs. Calbert viewed appellant taking her daughter into her room and then later exiting that same room after the crime. See Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148, 1155 (1979).
Additionally, the suppression hearing judge found that:
Given these findings of fact coupled with Mrs. Calbert's testimony, we conclude that she had an independent source upon which to base her in-court identification. Therefore, there was no error. Commonwealth v. Hall, 456 Pa. 243, 317 A.2d 891 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974).
Appellant also argues that Lisa's in-court identification of appellant should have been excluded on the basis that Lisa was not paying attention to the men and, therefore, could not have identified them accurately. However, the entire context of the testimony demonstrates the following. Lisa was downstairs in her home reading a library book when the three men came to the door. She was the one to open the door and let the men in at which time she saw them. Even though she resumed her reading, her attention was again drawn to the men when one put a gun to her mother and ordered her upstairs. Appellant then did the same to Lisa, all of which occurred in a well-lighted area as established by Mrs. Calbert's testimony and the finding of fact of the suppression judge. It was only after appellant was upstairs, Lisa testified, that she did not see his face clearly, and she described appellant to the police as being tall, dark-skinned with a short bush. The suppression judge went on to question Lisa as to whether she fully understood the term to "recognize" someone's face, since Lisa's testimony seemed strained. Based on the totality of the circumstances, we conclude there was not a substantial possibility for misidentification by Lisa based on her opportunities to view appellant. Therefore, there was no error in admitting the in-court identification, since it arose out of a source independent of the photographic show up. Manson v. Braithewaite, supra.
Next appellant argues that a mistrial should have been granted when the Commonwealth introduced a letter of co-defendant, James Miller, addressed to appellant, as Richard Walters. The facts surrounding this letter are that James Miller testified on direct examination that he did not know appellant, Richard Woods, by an alias. The Commonwealth, in an effort to impeach Mr. Miller's credibility, introduced the letter showing that Miller had, in fact, known appellant by the alias of Richard Walters since he had addressed the letter to him under that name. Miller then recanted and admitted he knew appellant by that alias. Appellant argues that the jury could have then inferred that Miller had something to hide concerning appellant.
This contention is without merit. As the trial judge stated in his opinion, "(b)y the very nature of impeachment, a witness will suffer in the eyes of the jury." The function of impeachment evidence is to attack the credibility of a witness, and the Commonwealth had a right to accomplish this through the use of prior inconsistent statements. In re Farms, 216 Pa.Super. 445, 268 A.2d 170 (1970). As we stated in In re Farms, at 450, 268 A.2d at 173:
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