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Home My WebLink About92-1407 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1407 CRIMINAL 1992 CHARGE: UNLAWFUL DELIVERY, V. MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER, SCH. I, C.S. (MARIJUANA) REGINALD OBERTON AFFIANTS: AGT. JAMES TILLMAN OTN: E001869-0 AGT. THOMAS LOWE IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, thisk2t� day of March, 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 GRANTED as to the out-of-court identification of Defendant by Officer Craig Scott LeCadre at the photographic array and DENIED as to any in - court identification testimony by the Officer. BY THE COURT, Jeffrey Baxter, Esq. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender : rc COMMONWEALTH v. REGINALD OBERTON OTN: E001869-0 Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1407 CRIMINAL 1992 CHARGE: UNLAWFUL DELIVERY, MANUFACTURE OR POSSESSION WITH INTENT TO DELIVER, SCH. I, C.S. (MARIJUANA) AFFIANTS: AGT. JAMES TILLMAN AGT. THOMAS LOWE IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF BEFORE OLER, J. OPINION AND ORDER OF COURT In the present criminal case in which the Defendant is charged with Unlawful Delivery, Manufacture or Possession with Intent to Deliver a Schedule I Controlled Substance (Marijuana), an Omnibus Pretrial Motion For Reliefhas been filed on behalf of the Defendant. The motion, as orally amended, requests (1) suppression of a certain out-of-court, and related in -court, identification, by reason of an allegedly unnecessarily suggestive photographic array, violative of Defendant's due process rights under the federal and Pennsylvania Constitutions, and (2) an order compelling production by the Commonwealth of a certain intercepted communication. The latter portion of the motion has been resolved amicably, as a result of which no action is required by the Court. Pursuant to a hearing on the suppression matter on Friday, March 5, 1993, the following Findings of Fact, Discussion, and Order of Court are made and entered. FINDINGS OF FACT 1. The Defendant and moving party is Reginald Oberton. 2. On Thursday, December 5, 1991, the Defendant allegedly sold marijuana to a confidential informant for $50, in the presence of Harrisburg City Police Officer 1407 CRIMINAL 1992 Craig Scott LeCadre, operating as an undercover agent. 3. The aforesaid sale occurred in the 100 block of West North Street, Carlisle Borough, Cumberland County, Pennsylvania, at approximately 7:10 p.m. 4. At the aforesaid time and place, the confidential informant, who was acquainted with Reginald Oberton, introduced the officer to his acquaintance, and they shook hands. 5. At the aforesaid time and place, Officer LeCadre remained within five to eight feet of this individual, and, except for a brief period when the individual went into a residence at 125 West North Street to retrieve the marijuana which he was to sell, observed the individual during the transaction for a period of five to fifteen minutes. 6. Although it was dark at the time of the sale, the area was illuminated by streetlights, and the officer's view of the individual making the sale was unobstructed. 7. The officer had not known the Defendant prior to this incident; however, as of the date of the incident he had had the benefit of over three years experience as a police officer, the most recent year of which had been as an investigator. 8. Immediately after the sale, the officer was able to describe the individual in question in great detail, specifying that he was a black male, approximately 20 years old, six foot one inch in height, and weighing approximately 170 pounds, with a thin build, brown eyes, short, black hair, a light mustache, no beard, no glasses, and 3 1407 CRIMINAL 1992 protruding ears. In addition, he described the individual as wearing a green Army jacket, dark pants, and a baseball type cap. 9. The officer's physical description accurately described the Defendant. 10. Within approximately 25 minutes of viewing the individual as aforesaid during the offense, the officer was shown a photographic array of approximately eight facial pictures of black males, including Defendant. 11. The photographic array was arranged by narcotics agent Thomas W. Lowe of the Pennsylvania Attorney General's Office, from a collection of 20 to 30 photographs which he maintained for this purpose, utilizing both the informant's information as to the seller's identity and the officer's description. 12. Agent Lowe did not communicate to Officer LeCadre, prior to the display, that the Defendant's picture was among those being shown. 13. Commonwealth testimony was to the effect that the persons pictured in the array were all of approximately the same age and that some matched some of the aforesaid characteristics; however, the photographic lineup was not preserved, a record of the photographs utilized was not made, and the array can not be reconstructed. 14. Officer LeCadre immediately and with certainty identified the Defendant from his picture in the array as the individual who made the sale. 15. Although the agent who arranged the array explained its lack of preservation by a need to reuse the photographs in other arrays, there does not appear 4 1407 CRIMINAL 1992 to be a reason that a record of the photographs utilized could not have been made so that the array could be reconstructed. 16. In the absence of a reproduction of the photographic array, or at least of some justification for the Commonwealth's incapacity in this regard, the Court finds that the Commonwealth has not met its burden of proving that the array was not unnecessarily suggestive. 17. The Court further finds, by clear and convincing evidence, that an in -court identification of Defendant by Officer LeCadre would be free from taint of any initial illegality, by reason of the extended opportunity of the officer to view the individual identified while in close proximity to him, the officer's high degree of attention to the perpetrator of the offense during its commission, the accuracy of his description, the certainty and lack of hesitation which accompanied his identification, and the shortness of time between the crime and the viewing of the array. DISCUSSION Statement of law. "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] ...." 2 Wasserbly, Pennsylvania Criminal Practice §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 5 1407 CRIMINAL 1992 established by the Commonwealth by [the] existence of clear and convincing evidence." Id.; see Commonwealth v. Fowler, 466 Pa. 19, 352 A.2d 17 (1976). With respect to photographic arrays, it has been said that "[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), allocatur denied, 514 Pa. 617, 521 A.2d 932 (1987). "[P]re-trial identifications] 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. "[A]n accurate reconstruction of [a] photographic display is the most orderly and effective way to protect the ... defendant from a prejudicially unrepresentative layout Procedure." Commonwealth v. Jackson, 227 Pa. Super. 1, 10 n.3, 323 A.2d 799, 804 n.3 (1974). Where the reconstruction of an array for judicial review has been rendered impossible by the failure of police to make a record, in circumstances similar to those involved herein, suppression of the out-of-court identification has been held to be the proper result. See, e.g., Commonwealth v. Hodge, 246 Pa. Super. 71, 76, 369 A.2d 815, 817 (1977) (suppression held appropriate "since the Commonwealth failed to retain the photographs which were utilized and thus made it impossible under the circumstances 0 1407 CRIMINAL 1992 to review the fairness of the procedure challenged"); Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974).1 With respect to in -court identification testimony, "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' degree of attention, the accuracy of 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. 156, 161, 541 A.2d 1387, 1389 (1988). Application of law to facts. In the present case, the Court has given the Defendant the benefit of the doubt with respect to the suggestiveness of the photographic array, because a reconstruction of the array for purposes of judicial review has been rendered impossible; consequently, the officer's out-of-court identification at the photographic array will be suppressed. However, with respect to any in -court identification of Defendant by Officer LeCadre, it is believed that the indicia of reliability recited in the Findings of Fact establish an independent basis for admission of the identification, free from the taint of any initial impropriety. For these reasons, the following Order will be entered: ' Cf. Commonwealth v. Patterson, 392 Pa. Super. 331, 572 A.2d 1258 (1990), allocatur denied, 527 Pa. 631, 592 A.2d 1299 (1991). 7 1407 CRIMINAL 1992 ORDER OF COURT AND NOW, this llt- day of March, 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 GRANTED as to the out-of-court identification of Defendant by Officer Craig Scott LeCadre at the photographic array and DENIED as to any in - court identification testimony by the Officer. BY THE COURT, s/ J. Wesley Oler, Jr. J. Jeffrey Baxter, Esq. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender re