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HomeMy WebLinkAbout91-1390 CriminalCOMMONWEALTH OF PENNSYLVANIA V. GERALD M. HOLBROOK IN THE COURTF COMMON PLEAS OF CUMBERLAND CO TY, PENNSYLVANIA 1390 CRIMINAL11991 CHARGE: INDE ENT ASSAULT BEFORE OLER, J. ORDER OF COURT AND NOW, this IY �I day of April, 1992, the To Suppress is DENIED. BY THE COURT, w'._3 Kimberley A. Kardelis, Esq. Assistant District Attorney Hubert X. Gilroy, Esq. Court-appointed counsel for Defendant :rc ,fendant's Motion J. COMMONWEALTH OF PENNSYLVANIA V. GERALD M. HOLBROOK IN RE: DEFENDANT' IN THE COURT F COMMON PLEAS OF CUMBERLAND CO JNTY, PENNSYLVANIA 1390 CRIMINAR 1991 CHARGE: IND CENT ASSAULT BEFORE OLER, J. OPINION AND ORDER OF COURT OLER, J. In the present criminal case in which the Defendant is charged with indecent assault,' an omnibus pretrial motion has been filed on behalf of the Defendant. The motion requestsi a) suppression of identification testimony based upon an allegedly improper photo array and preliminary hearing confrontation and b) suppression of physical evidence based upon an alleged lack of probable cause in a search warrant. An evidentiary hearing was held on the matter on April 3, 1992. FINDINGS OF FACT 1. On November 27, 1990, in the early Evening hours, an individual entered a retail shop known as the Dress Barn in Hampden Township, Cumberland County, Pennsylvania. 2. The shop was open for business and was well lit with fluorescent and spot lights. 3. On duty at the time of the individual's entrance, and throughout his stay at the establishment, were cl rks Maria Sweeney and Chris Snyder. 4. The individual remained in the shop for ' Act of December 6, 1972, P.L. 1482, §1, a C.S. §3126 (1991 Supp.). about two hours, amended, 18 Pa. 1390 Criminal 1991 during which time both clerks had occasion to talk with him and offer assistance with his shopping. 5. The individual appeared to be a white ale, about 40, of dark complexion, with black, curly hair, brown eyes, and a day's growth of beard. His height was between 517" and 6'0" and he weighed approximately 175 pounds. 6. He wore a black jogging suit with white markings in the chest or shoulder area. 7. After selecting approximately $400 wor h of merchandise for a person not present, whom he described as x girlfriend of a certain dress size, the man suddenly reached up the skirt of Ms. Sweeney as she attempted to retrieve a sweater or a wall shelf for his inspection. 8. Ms. Sweeney demanded an explanation fir his action; he asked whether she wanted him to pay for the merchandise; she ordered him to leave the shop; and he departel as both clerks followed him out. 9. During the individual's stay in the shop, both clerks saw him for a substantial period of time, gave a complete and accurate description to the police, and have not wavered from that description. 10. The incident was reported to the Hampde Township Police Department, and facial composites were prepared from the descriptions of the individual provided by the clerks. State's Exhibit 4. 2 1390 Criminal 1991 11. In late May or early June of 1991 composites happened to be observed on a bulle Hampden Township Police Department by the state the Defendant. 12. The parole officer brought to the affiant herein, Hampden Township Police Officer S the marked resemblance of the Defendant to the c 13. The affiant prepared a photo lineup including the Defendant, for viewing by the Exhibit 1. _, the aforesaid n board at the ole officer of ttention of the en B. Spangler, )site drawings. f nine persons, lerks. State's 14. The photo array, consisting of nine sets of black and white, frontal/side facial pictures of white males matching the description of the alleged perpetrator was shown peparately to the victim and second clerk on June 6, 1991, an� June 7, 1991, respectively. 15. In the case of each clerk's participa ion in the photo array procedure, the affiant asked the viewer i identify any person in the array as the perpetrat was made that the police believed the perpetrai persons shown, nor did the clerks consult each of respective viewings. 16. Both clerks positively identified 2 No documentary evidence was presented by as to the ages of the nine individuals compr however, they all resembled each other. Defen 1957. 3 her she could r; no suggestion was among the r between their the Defendant's the Commonwealth sing the array; ant was born in 1390 Criminal 1991 pictures as those of the perpetrator. 17. Neither the photo display itself the procedure employed in showing it to the witnesses was undu y suggestive. 18. The Defendant was arrested on a ch rge of indecent assault arising out of the foregoing incident c 19. The Defendant had been incarcerated since April 20, 1991. 20. A preliminary hearing with respect indecent assault was held at the office of a District Justice on August 7, 1991. 21. It was obvious to the two clerks at hearing that the Defendant was in police custody. 22. Both clerks again identified the E perpetrator at the preliminary hearing. July 29, 1991. n another matter the charge of )erland County the preliminary 3 efendant as the 23. The procedure at the preliminary earing did not constitute a violation of the Defendant's rights 24. The circumstances of the initial contact between the clerks and the perpetrator at the time of the crim events, were such that a basis independent c pretrial processes exists for any identification trial by the clerks. 25. On August 7, 1991, the affiant obtained 3 Prior to the hearing, Defendant was anteroom at the District Justice's office in r shackles. 4 , and subsequent the aforesaid of Defendant at a search warrant jht into the uffs and leg 1390 Criminal 1991 for the Defendant's most recent civil residenc , located at 418 Linden Street, Mechanicsburg (Hampden Township], Cumberland County, Pennsylvania. State's Exhibit 2. 26. The application for the warrant stated: "Victim and witness both identified [Defendant] Holbrook as the perpetrator of the assault. Witness and the victim related that the assault occurred by person dressed in a black velour Jogging suit with white leather sneakers with black trim. At he date of the assault, Holbrook resided at 418 Linden Street, Me hanicsburg, Pa." State's Exhibit 2. 27. The application for the warrant identi ied the items to be searched for and seized as "[o]ne Black velour 'ogging suit (top and bottom) [and o]ne pair of white sneakers; 1 ather with black trim"; it identified the owner, occupant or ossessor of the premises as "Gerald M. Holbrook, and Al DeMao who also resides at the residence ... (DeMao owns residence)"; and it identified the offense in question as an indecent assault, occurring on November 27, 1990. State's Exhibit 2. 28. Mr. DeMao admitted the affiant into the residence for execution of the warrant. 29. A black, two-piece jogging suit with w ite markings was seized pursuant to the warrant. State's ExhibitE 3, 7. DISCUSSION Pretrial identification of defendant. hen an accused challenges [an allegedly illegal] identification, it is the 5 1390 Criminal 1991 Commonwealth's burden to prove that the identification procedure did not violate the accused's right[s] .... ,,4 In the event that the identification procedure was improper, "[a]n independent basis for admission of in -court identification testimo y 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.i' With respect to photographic lineups, "[w]h re there has not yet been an arrest for the offense in question, Dut the defendant is in custody for a different offense, the right to counsel at a photographic array does not attach." 2 Wasser ly, Pennsylvania Criminal Practice §21.03, at 19-20 (1991 Supp.); see 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 t1le accused's due process rights." 2 Wasserbly, Pennsylvania Criminal Practice §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 dentification as 2 Wasserbly, Pennsylvania Criminal Practice §21.07, at 13 Id.; see Commonwealth v. Fowler, 466 Pa. 2 198, 352 A.2d 17 1390 Criminal 1991 to deny the accused due process." Id. at 337, 481 A.2d at 596; see Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 .Ed.2d 401 (1972) (discussion of requisite of unreliability of dentification in addition to unnecessarily suggestive procedure in order to justify suppression; recitation of criteria for etermination of reliability). The display of a single photograph to a witness has been said to be "a suggestive procedure." 2 Wasserbly, Pennsylvania Criminal Practice §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 witn ss's description of an assailant ... is not unduly suggestive." 2 Wasserbly, Pennsylvania Criminal Practice §21.03, at E (1981); see Commonwealth v. Zabala, 310 Pa. Super. 301, 456 A.2d 622 (1983). In the present case, the nine -person black and w ite photographic lineup was comprised of facial pictures of Def ndant and eight other white males corresponding to the witnesses descriptions of the perpetrator; the display was not unnecessarilY suggestive, nor do the circumstances of the case suggest the li elihood that the identifications were unreliable even should the procedure employed by considered suggestive. With respect to the appearance of the efendant at the preliminary hearing while in the custody of law enforcement officers, it is noted that at a preliminary hea ing an accused's appearance in the capacity of a defendant will be a matter of 7 1390 Criminal 1991 course and that, in many cases, the custodial status of the accused will be manifest. In this case, the Defendant hd been previously identified in a nonsuggestive photographic I array, and his observation by the clerks at the District Justice's office was not part of an "identification process" initiated by the prosecution.' Under the circumstances, the Court does not elieve that his constitutional rights were violated at the heari6g.' Furthermore, the Commonwealth has shown by clear and convincing evidence that a basis independent of any pretrial identification exists for admission of any in-cou t identification testimony.8 "[A] framework for determining the of an in -court identification" has been said following: the opportunity of the witness to view at the time of the crime, the witness' description of the criminal, the level demonstrated by the witness at the [pr( ' Cf. 2 Wasserbly, Pennsylvania Criminal Pr 5 (1981); Moore v. Illinois, 434 U.S. 220, 54 L. Ct. 458 (1977); Commonwealth v. Taylor, 472 Pa. (1977). pendent basis to involve the the criminal prior of certainty atrial Mice §21.03, at d. 2d 424, 98 S. ., 370 A.2d 1197 ' Cf. Commonwealth v. Ennis, 394 Pa. Super. 1, 574 A.2d 116 (1990) (recognition of defendant by robbery vixtim at pretrial hearing; suppression denied). 8 "Once the primary illegality of a pretrial confrontation has been established, an in -court identification i5 admissible only if the Commonwealth can show by 'clear and convincing evidence' that the in -court identification had no in ependent origin 'sufficiently distinguishable to be purged of the primary taint."' 2 Wasserbly, Pennsylvania Criminal Practice §21.q8, at 14 (1981). 1390 Criminal 1991 identification], and the length of tine between the crime and [pretrial identification].[' Commonwealth v. Robinson, 518 Pa. 156, 161, 341. A.2d 1387, 1389 (1988), quoting Commonwealth v. James, 506 Pa. 526, 536, 486 A.2d 376, 380 (1985). Most of the factors militating in favor of a conclusion of independent origin are extant in tie present case.10 Search warrant. "Probable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal acti ity, and (2) that the items will be found in the place to be searched.,, Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623 (198c). "The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits." Pa. R. Crim. P. 2003(a). The task of the issuing magistrate is imply to make a pretrial, common sense decision whether, given all the circumstances set forth n the affidavit before him ... that there is a fair probability that the contraband [or] a idence of a crime will be found in a particul r place. Commonwealth v. Flaherty, 400 Pa. Super. 397, 40 , 583 A.2d 1175, 1177 (1990), allocatur denied, 592 A.2d 1297 (Pa. 1991), quoting Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). "A search warrant may issue only upon an existing cause, and stale information cannot supply probable cause. In determining 9 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). io With respect to the lapse of time between crime and identification, see Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972) (seven months). 9 1390 Criminal 1991 'staleness,' courts look to the nature and quality of items sought, the time elapsed, the ease with which the items can be disposed of, and the continuing nature of the illicit enterprise." 1 Wasserbly, Pennsylvania Criminal Practice §19.11, at 28 (1981). Thus, "a determination [of staleness] must be made on a case by case basis. Mere lapse of time between discovery of crim'al activity and issuance of the warrant will not necessarily d ssipate probable cause Commonwealth v. Stamps, 493 Pa. 5-2-0, 536, 427 A.2d 141, 144 (1981). In the present case, the jogging suit so ght was clearly connected with criminal activity. Such an item, a though evidence, was not contraband, perishable, or consumable in y ordinary sense - unlike drugs, one's clothing may be expected to be retained intact and on a nontemporary basis. It does not appear unreasonable to the Court for the DistrictJustice- to have concluded that the facts alleged indicated a air probability" that the suit would be found at the Defendant's residence, notwithstanding the passage of several months sin the crime. For these reasons, the Court finds that probable cau a for the search warrant was adequately stated. ORDER OF COURT AND NOW, this /y�, day of April, 1992, the Defendant's Motion To Suppress is DENIED. BY THE COURT, J. 10 1390 Criminal 1991 Kimberley A. Kardelis, Esq. Assistant District Attorney Hubert X. Gilroy, Esq. Court-appointed counsel for Defendant 11