Pender v. United States

• Decision Date: 12 October 1973
• Docket Number: No. 7048.,7048.
• Citation: 310 A.2d 252
• Parties: Joann PENDER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

310 A.2d 252

Joann PENDER, Appellant, v. UNITED STATES, Appellee.

No. 7048.

District of Columbia Court of Appeals.

Submitted August 1, 1973.

Decided October 12, 1973.

Dumond Peck Hill, Washington, D.C., appointed by this court, for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, James A. Fitzgerald and Michael G. Scheininger, Asst. U. S. Attys., for appellee.

Before FICKLING, GALLAGHER and HARRIS, Associate Judges.

FICKLING, Associate Judge:

Appellant Joann Pender was convicted after a jury trial for violation of D.C.Code 1967, § 22-1506 (three-card monte statute) and § 22-2201 (grand larceny). On appeal she asserts: (1) that the post-lineup identification was impermissible in the absence of counsel,¹ and that the lineup itself was unnecessarily suggestive in violation of her right to due process of law;² thus, the testimony concerning the lineup was inadmissible; (2) that the complainant's in-court identification lacked a source independent of the pre-trial lineup. After scrutinizing the record, we find the admission of the identification testimony does not warrant reversal. We do find it necessary, however, to reverse the conviction for violation of the three-card monte statute.

On March 28, 1972, Mrs. Annie M. Sherrill, an elderly local resident, was the victim of a classic "short con" game known as "pigeon drop." At approximately 1 p. m. that day, Mrs. Sherrill was leaving a Safeway supermarket at Georgia Avenue and Ingraham Street, N.W., when she was stopped by a male stranger, later identified as Johnny Mason. Mr. Mason told her he had just found a large sealed envelope that probably contained money. While Mr. Mason and Mrs. Sherrill were discussing the envelope, a woman, later identified by Mrs. Sherrill as the appellant, approached and urged Mr. Mason to open the envelope. Mr. Mason responded by handing the envelope to the appellant; she opened it and exclaimed that it contained thousands of dollars. Mr. Mason immediately took back the envelope and offered to pay appellant and Mrs. Sherrill $50 each if they would keep quiet regarding the envelope. He quickly, however, withdrew the offer and requested that both women remain on the corner while he went up the block to consult with his "boss" about the matter.

During the time Mr. Mason was gone, appellant told Mrs. Sherrill that she had just collected $18,000 as a settlement from an automobile accident and had the money in her bosom. After a few minutes, Mr. Mason returned; he explained that at the direction of his "boss" he would pay each of the ladies $1,000 in cash if each would give him $1,000 of their own money to hold. Appellant quickly agreed to the plan and gave Mr. Mason the $1,000. When Mrs. Sherrill said that she had only $300, Mr. Mason promised to lend her the $700 balance and sent her to her downtown bank to withdraw the $300. Accompanied by appellant Mrs. Sherrill went home to get her passbook and then to her bank, where she made a withdrawal of $300.

From the bank Mrs. Sherrill and appellant took a taxicab back to the corner of Georgia Avenue and Ingraham Street. Mr. Mason was waiting for the two women and escorted them into the Safeway to divide the money. Inside the Safeway he asked for Mrs. Sherrill's $300, explaining that he would first take appellant to the "boss" to get her $1,000 and then come back for Mrs. Sherrill. Mrs. Sherrill hesitantly surrendered the money to Mr. Mason. Appellant and Mr. Mason left the store and never returned. The crime took between two and three hours to accomplish.

The next day, on March 29, Mrs. Sherrill met with Detective Harrison in the Check Section office at police headquarters; the detective provided her with four or five volumes of photographs to examine.³ After going through the volumes, Mrs. Sherrill identified two pictures of appellant, exclaiming she was "certain this is the individual."

On May 11, 1972, Mrs. Sherrill attended a lineup conducted in the presence of appellant's court-appointed counsel. Before the start of the lineup, Mrs. Sherrill was told that appellant would be present. While viewing the lineup Mrs. Sherrill was unable to identify appellant. On the way out of the station house, however, in the sole company of a police officer, she said she thought Number 4 (appellant) looked like her.

A pretrial hearing was held on appellant's motion to suppress the identification testimony. After listening to Mrs. Sherrill's testimony, the substance of which is set forth above, the trial court found there was an independent source for her in-court identification and that, additionally, her post-lineup identification was admissible.

At trial the prosecution offered into direct evidence both the in-court and post-lineup identifications. In defense appellant presented an alibi stating she had spent the entire day of March 28 at her regular place of employment. She further argued...