The URL can be used to link to this page

Home My WebLink About92-1813 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V• 1813 CRIMINAL 1992 CHARGE: (A)ROBBERY (B)SIMPLE ASSAULT BARRY ELLIS WILKINSON AFFIANT: DET. DAVID FONES OTN: E002063-5 IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE OLER. J. ORDER OF COURT AND NOW, this 21st day of January, 1993, upon consideration of Defendant's Omnibus Pretrial Motion For Relief in the form of a Motion to Suppress, and following a hearing, the Motion is DENIED. By the Court, Q� JTes'l ey 0 1 eQ Jr., J'. ALISON TAYLOR, ESQUIRE Assistant District Attorney TIMOTHY L. CLAWGES, ESQUIRE Assistant Public Defender wcy COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V• 1813 CRIMINAL 1992 CHARGE: (A)ROBBERY (B)SIMPLE ASSAULT BARRY ELLIS WILKINSON AFFIANT: DET. DAVID FONES OTN: E002063-5 IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF OLER, J. BEFORE OLER, J OPINION AND ORDER OF COURT In the present criminal case in which the Defendant is charged with robbery and simple assault, an Omnibus Pretrial Motion For Relief has been filed on behalf of the Defendant. The motion, as orally amended, requests suppression of certain out-of-court, and related in -court, identifications, by reason of an allegedly unnecessarily suggestive photographic array and procedure, violative of Defendant's due process rights under the federal and Pennsylvania Constitutions. Pursuant to a hearing on the matter held on Thursday, January 21, 1993, the following Findings of Fact, Discussion, and Order of Court are made and entered. Wilkinson. FINDINGS OF FACT 1. The Defendant and moving party is Barry Ellis 2. On September 15, 1992, Daniel Miller was subjected to an assault and robbery at between 8:30 p.m. and 8:50 p.m. at approximately the corner of Pitt and Louther Streets in the Borough of Carlisle, Cumberland County, Pennsylvania. 3. At the aforesaid time and place, Mr. Miller was approached by a black male who identified himself as Barry Wilkinson and who said that Mr. Miller knew him from high school. 4. At the aforesaid time and place, the area was well lighted by a street lamp, and it was not yet completely dark. 5. In the course of approximately one minute to one and a half minutes, the individual struck Mr. Miller, knocked him to the ground, and forcibly removed $60.00 and a set of keys from the person of Mr. Miller. 6. At the aforesaid time and place, Mr. Miller's dinner companion, James Dougherty, witnessed the attack. 7. Mr. Miller and Mr. Dougherty immediately went to the Carlisle Borough Police Station and reported the assault and robbery. 8. Mr. Miller and Mr. Dougherty were interviewed by Carlisle Police Department Detective David R. Fones. 9. Mr. Miller advised Detective Fones that the individual who had accosted him had identified himself as Barry Wilkinson, and was a black male with short hair, wearing certain clothing which matched the clothing of a Barry Wilkinson whom Detective Fones had seen earlier that day. 10. Detective Fones compiled a photo array composed of six front/side color photographs of black males, including the photograph of Defendant Barry Wilkinson. 11. As shown, the photographs did not reveal any information as to the individuals pictured other than the Pictorial information as to their faces. 12. Detectives Fones showed this photo array separately to both Daniel Miller and James Dougherty, in each case prefacing the display with the statement that the individual involved in the assault and robbery may or may not be among the pictures. He also indicated that the appearance of individuals can change from time to time with respect to facial hair and so forth. 13. The photo array was shown to Mr. Miller first, and this showing occurred at approximately 9:18 p.m. on September 15, 1992. 14. The pictures contained in the said photo array are not unnecessarily suggestive with respect to Mr. Wilkinson and are of persons who resemble each other and are of approximately the same age and other physical characteristics. 15. Mr. Miller picked out the photograph of the Defendant as being the perpetrator within 30 seconds of being shown the array and without any hesitation in his mind. 16. Following the showing of the photo array to Mr. Miller, the array was shown to Mr. Dougherty, who similarly picked out the photograph of the Defendant as the perpetrator without hesitation. 17. Mr. Miller and Mr. Dougherty did not consult with respect to the identifications prior to their being made, and neither knew which photograph, if any, the other had selected; Detective Fones did not indicate that either had selected the photograph of Barry Wilkinson immediately following the photo array. 18. Irrespective of the identification at the photographic array by Mr. Miller, there is an independent basis for his identification of the Defendant, if it occurs at trial, by reason of the period of time and good lighting which occurred and was present on the occasion of the assault and robbery. DISCUSSION "When an accused challenges [an allegedly illegal pretrial] identification, it is the Commonwealth's burden to prove that the identification procedure did not violate the accused's right[s] ....11 2 Wasserbly, Pennsylvania Criminal Practice Section 21.07, at 13 (1981). In the event that the identification procedure was improper, "[a]n independent basis for admission of in -court identification testimony on grounds that it is free from taint of initial illegality needs to be established by the Commonwealth by [the] existence of clear and convincing evidence period." Id.; see Commonwealth v. Fowler, 466 Pa. 19, 352 A.2d 17 (1976). With respect to photographic lineups, "[w]here there has not yet been an arrest for the offense in question ... the right to counsel at a photographic array does not attach." 2 Wasserbly, Pennsylvania Criminal Practice Section 21.03, at 19-20 (1991 Supp.); see Commonwealth v Blassingale, 398 Pa. Super. 379, 581 A.2d 183 (1990); Commonwealth v. Sanders, 380 Pa. Super. 78, 551 A.2d 239 (1988). However, "[a] photographic lineup may be challenged on the ground that it was unduly suggestive and hence a violation of the accused's due process rights." 2 Wasserbly, Pennsylvania Criminal Practice Section 21.03, at 5 (1981); see Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976); Commonwealth v. Voss, 333 Pa. Super. 331, 482 A.2d 593 (1984). "[P]re-trial identification[s] may be inadmissible at trial [if they] were obtained by a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the accused due process." Id. at 337, 482 A.2d at 596; Neil v Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972) (discussion of requisite of unreliability of identification in addition to unnecessarily suggestive procedure in order to justify suppression; recitation of criteria for determination of reliability). The display of a single photograph to a witness has been said to be "a suggestive procedure." 2 Wasserbly, Pennsylvania Criminal Practice Section 21.03, at 5 (1981); see Commonwealth v. Bradford, 305 Pa. Super. 593, 451 A.2d 1035 (1982). But "[a] display of six black and white photographs which corresponded to a witness's description of an assailant ... is not unduly suggestive." 2 Wasserbly, Pennsylvania Criminal Practice Section 21.03, at 5 (1981); see Commonwealth V. Zabala, 310 Pa. Super. 301, 456 A.2d 622 (1983). In the present case, the six -person color photographic lineup was comprised of facial pictures of Defendant and five other black males corresponding to each other in facial characteristics; the display was not unnecessarily suggestive, nor do the circumstances of the case suggest the likelihood that the identifications were unreliable even should the procedure employed be considered suggestive. In this case, the identifications by Mr. Miller and Mr. Dougherty occurred almost immediately following the offenses, and the lighting and period of time involved in the occurrence of the offenses was sufficient to provide a sound basis for identification. Furthermore, the Commonwealth has shown by clear and convincing evidence that a basis independent of any pretrial identification exists for admission of any in -court identification testimony on the part of Mr. Miller. 11[A] framework for determining the independent basis of an in -court identification" has been said to involve the following: the opportunity of the witness to view the criminal at the time of the crime, the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the [pretrial identification], and the length of time between the crime and [pretrial identification]. Commonwealth V. Robinson, 518 Pa. 1561 161, 341 A.2d 1387, 1389 (1988). These criteria are similar to those employed in determining whether a suggestive pretrial identification was nevertheless sufficiently reliable to be admissible. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). For the foregoing reasons, the following Order of Court will be entered. ORDER OF COURT AND NOW, this 21st day of January, 1993, upon consideration of Defendant's Omnibus Pretrial Motion For Relief in the form of a Motion to Suppress, and following a hearing, the Motion is DENIED. By the Court, Is/ J. Wesley Oler, Jr J. ALISON TAYLOR, ESQUIRE Assistant District Attorney TIMOTHY L. CLAWGES, ESQUIRE Assistant Public Defender wcy