Loading...
HomeMy WebLinkAbout93-0371 CiminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 371 CRIMINAL 1993 V. CHARGE: (A) OPEN LEWDNESS (B) INDECENT EXPOSURE (C) DISORDERLY CONDUCT EDWARD JOSEPH RUDA, JR. OTN: E212262-1 AFFIANT: PTL. RAYMOND ANDERSON ORDER OF COURT AND NOW, this Z;�rd day of November, 1993, upon consideration of Defendant's Amended Post -Trial Motions for a new trial and in arrest of judgment, based upon an alleged error of the suppression hearing court in denying Defendant's Omnibus Pretrial Motion for Relief, the Motions are DENIED on the basis of the Opinion of the Honorable Harold E. Sheely dated October 28, 1993, attached hereto and made a part hereof. An additional ground for denial of the motion in arrest of judgment is that such a motion will not be granted upon a diminished record. Pa. 4791 353 A.2d 454 (1976). See Commonwealth v. Baker, 466 The Probation Office is DIRECTED to prepare a presentence investigation report, and Defendant is DIRECTED to appear for sentence at the call of the District Attorney. BY THE COURT, JJ Wesley 01 , Jr. J. Jeffrey Baxter, Esq. Sr. Assistant District Attorney Samuel W. Milkes, Esq., Assistant Public Defender Attorney for Defendant Probation Office :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V 371 CRIMINAL 1993 CHARGE: (A) OPEN LEWDNESS (B) INDECENT EXPOSURE (C) DISORDERLY CONDUCT EDWARD JAMES RUDA, JR. AFFIANT: PTL. ANDERSON IN RE: OMNIBUS PRETRIAL MOTION TO SUPPRESS BEFORE SHEELY, P.J. ORDER OF COURT AND NOW, this day ofa-- (ZF--\1993, we hereby DENY defendant's omnibus pretrial motion to suppress the photo array and the identification at the preliminary hearing. By the Court, Ute- - H rold E. heely, P.J. Jonathan Birbeck, Esquire Assistant District Attorney Samuel Milkes, Esquire Assistant Public Defender Probation :pbf 0-, COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V 371 CRIMINAL 1993 CHARGE: (A) OPEN LEWDNESS (B) INDECENT EXPOSURE (C) DISORDERLY CONDUCT EDWARD JAMES RUDA, JR. AFFIANT: PTL. ANDERSON IN RE: OMNIBUS PRETRIAL MOTION TO SUPPRESS BEFORE SHEELY, P.J. OPINION AND ORDER OF COURT Here we are asked to decide whether the photo array shown to the victim was impermissively suggestive and whether the photo array as well as the victim's identification at the March 3, 1993 preliminary hearing should be suppressed. FINDINGS OF FACT 1. On November 11, 1992, at approximately 10:45 p.m., an employee of the Unimart located on Spring Road within North Middletown Township, Cumberland County, observed an individual in front of her and in front of the store with genitalia exposed. 2. The individual was standing close to the window under the lights on the front of the store. •3. When Patrolman Anderson arrived, the employee gave a description of the individual; a white male with a ruddy complexion, approximately six foot tall, two hundred and thirty pounds, long brown hair with a mustache and no beard. 4. Four days after the incident, the individual returned to the store while the employee and the manager were 371 CRIMINAL 1993 working. 5. The employee identified the individual in confidence to the manager who identified him as the defendant, Edward J. Ruda, Jr. 6. When Patrolman Anderson returned on February 15, 1993 to get more information, he was told the suspect's name and address. 7. Based on the employee's description, Captain Rudolf made a photo array of seven individuals including the defendant matching the description. 8. Each individual is a white male with a ruddy complexion. 9. Each individual has long brown hair and a mustache but the defendant has some facial hair below his lip. 10. There is no way to determine the individuals' weight. 11. There are two photographs of each individual one profile, one straight on except for the defendant, who has one photograph straight on. 12. The individuals' names are not shown and a piece of paper stapled next to the defendant's picture covers his name. 13. On February 17, 1993, Officer Carder stopped at the Unimart, pulled the employee aside to an area where she would not be distracted and showed her the photo array. 14. The officer instructed the employee to tell him if 2 371 CRIMINAL 1993 the individual she saw was in the photo array or to tell the officer if she did not see the individual and then left her alone. 15. After about a minute, the employee pointed to the defendant's photograph and stated, "This is the guy." 16. The officer did not indicate to the employee whether she picked the defendant. 17. On February 26, 1993, a complaint was filed, the defendant was arrested that day and a preliminary hearing was held March 3, 1993. 18. The employee positively identified the defendant at the preliminary hearing. DISCUSSION When ruling on a suppression motion, the suppression court is required to make findings of fact and conclusions of law as to whether the evidence was obtained in violation of defendant's constitutional rights and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h,i); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1988); Commonwealth v Haynes, 395 Pa. Super. 322, 577 A.2d 564 (1990), appeal denied, 527 Pa. 598, 589 A.2d 689 (1991). It is well established that a photo array will be suppressed if under the totality of the circumstances, the identification procedure was "so impermissively suggestive as to give rise to a very 3 371 CRIMINAL 1993 substantial likelihood of irreparable misinformation." Commonwealth v. Jarecki, 415 Pa. Super. 286, 291, 609 A.2d 194, 196 (1992). If the photo array is not suggestive, then the in - court identification has not been tainted and is admissible. Commonwealth v. Swinson, Pa. Super. 626 A.2d 627 (1993). If the photo array is suggestive, the witness's in -court identification may still be admissible if it is found that the witness has an independent basis for identifying the suspect at the preliminary hearing. Commonwealth v. Nelson, 399 Pa. Super. 618, 582 A.2d 1115 (1990). In the present case, the Commonwealth presented the officers involved and the photo array at the suppression hearing.' The employee saw the defendant in front of her, through a window, while the defendant was standing under the store lights .2 She describes the individual as a white male, six foot tall, two hundred and thirty pounds with ruddy complexion, long brown hair and no beard. Based on this ' The defendant objects to the lack of the presence of the identifying witness at the suppression hearing. The exclusionary rules are designed to prohibit improper police conduct and the primary focus is on their actions. See, Mason v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140, 153 (1977). Although preferable, the presence of an identifying witness at a suppression hearing is not mandatory. Commonwealth v Thompkins, 311 Pa. Super. 357, 363, 457 A.2d 925, 927 (1983). 2 The defendant also maintains that since the employee did not make eye contact with the defendant, she could not adequately identify the defendant. Obviously one can identify a person without making eye contact. With this type of offense, it is understandable that the witness did not make eye contact. 4 371 CRIMINAL 1993 description Captain Rudolf made a photo array including seven individuals. Each of which is a white male with a ruddy complexion . Each individual has a mustache but the defendant has some facial hair under his lip. It cannot be determined from the pictures the weight of the individuals. There is only one straight on shot of the defendant instead of a straight on shot and a profile shot. This is not suggestive, particularly in light of the fact that the employee saw the defendant straight on, not at a profile. Likewise it was not suggestive to cover the second half of the picture since it did not obscure the defendant's picture but rather his name. Given the fact that the employee knew the defendant's name, it would have been impermissively suggestive to leave covered the defendant's name uncovered. The officer gave no indication to the employee that the defendant was even in the photo array. The employee took about a minute to identifying the defendant, stating, "This is the guy." The officer left with the photo array without indicating whether she picked the defendant, Edward James Ruda, Jr. Based on the totality of the circumstances, we conclude that the Commonwealth has demonstrated by a preponderance of the evidence that the photo array used was not impermissively suggestive. Even if the photo array had been impermissively suggestive, we believe the witness had an independent basis for identifying the defendant at the preliminary hearing. The 5 371 CRIMINAL 1993 witness a clear opportunity to view the defendant at the time of the offense. The witness had a good degree of attention and gave an accurate description of the defendant. Moreover, she was very certain in identifying the defendant at the preliminary hearing. The time period between the crime and the confrontation was moderate. Based ont he totality of the circumstances we find that the witness had an independent basis for the identification at the March 3, 1993 preliminary hearing. ORDER OF COURT AND NOW, this �,��/ day of 1� , 1993, we hereby DENY defendant's omnibus pretrial motion to suppress the photo array and the identification at the preliminary hearing. By the Court, Jonathan Birbeck, Esquire Assistant District Attorney Samuel Milkes, Esquire Assistant Public Defender Probation : pbf Is/ Harold E. Sheely Harold E. Sheely, P.J. .0