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COMMONWEALTH v. WHITING (07/02/70)

decided: July 2, 1970.

COMMONWEALTH
v.
WHITING, APPELLANT



Appeal from order of Superior Court, No. 1249, Oct. T., 1968, affirming judgment of Criminal Courts of Montgomery County, Nov. T., 1967, No. 132, in case of Commonwealth v. Charles E. Whiting.

COUNSEL

Richard M. Lovenwirth, Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him Richard A. Devlin and Paul W. Tressler, Assistant District Attorneys, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.

Author: Roberts

[ 439 Pa. Page 207]

On April 9, 1968, appellant was found guilty by a jury of robbery, aggravated robbery, and assault and battery, all arising out of a purse snatching. Following the denial of post-trial motions he was sentenced to serve from four to twelve years. He thereupon appealed to the Superior Court, which affirmed the judgment of sentence per curiam without opinion. We granted allocatur.

On November 9, 1967 appellant was arrested for the purse snatching in question. Approximately one hour after his arrest, the victim was shown eight photographs, one of which was the appellant without eyeglasses. After the victim identified appellant as her assailant, she was then shown another picture of appellant, this time with eyeglasses (her assailant wore eyeglasses). She again identified appellant as her assailant. The next day Detective McNabb of the Lower Merion Police Department telephoned her, requesting that she come to the police station to view a suspect. When she arrived she was shown the appellant behind a one-way mirror being questioned by Detective McNabb, whom the victim knew. Concerning these pretrial confrontations, the victim testified at trial: "Well, I said the photograph looked like the person. The next day, I said that it positively was the suspect I saw." The victim also testified that at the time her purse was snatched, she observed her assailant for approximately three to six seconds.

[ 439 Pa. Page 208]

In United States v. Wade, 388 U.S. 218, 229-30, 87 S. Ct. 1926, 1933-34 (1967),*fn1 the Supreme Court of the United States detailed the reasons for holding that certain pretrial confrontations are critical stages which require that the accused have counsel present: "The pretrial confrontation for purpose of identification may take the form of a lineup . . . or presentation of the suspect alone to the witness, as in Stovall v. Denno, supra [388 U.S. 293, 87 S. Ct. 1967 (1967)]. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification. But as is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations." (Emphasis added; footnote omitted.)

Additionally, the Court pointed out in Wade that counsel was necessary to overcome the "potential for improper influence" inherent in certain pretrial identification procedures: "[T]he vice of suggestion created by the [one-on-one] identification in Stovall, supra, was the presentation to the witness of the suspect alone handcuffed to police officers. It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police." Wade, 388 U.S. at 234, 87 S. Ct. at 1936.

In the instant case there were two pretrial confrontations which occurred after the suspect was in custody: a one-on-one identification through a one-way mirror, and a photographic identification. It is clear that under Wade, both confrontations were critical stages requiring counsel. The necessity for counsel at

[ 439 Pa. Page 209]

    a one-on-one identification was specifically noted in the passages quoted above from Wade.*fn2 Indeed, appellant's inability to depict what transpired at the one-on-one identification is readily apparent in the instant case, for appellant did not even know of the identification until the victim testified at trial. As for the photographic lineup employed in the instant case, the necessity for counsel at that confrontation is implicit in Wade, which factually concerned a corporeal line-up. Wade cannot be undercut simply by substituting pictures for people, nor can the police prepare a witness for the lineup by privately showing the witness pictures of the accused. As the Third Circuit recently held in United States v. Zeiler, 427 F. 2d 1305, 1307 (3d Cir., 1970): "The considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody. The dangers of suggestion inherent in a corporeal lineup identification are certainly as prevalent in a photographic identification. . . . Also the ...


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