Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, Nos. 1360 and 1361, in case of Commonwealth of Pennsylvania v. Ronald Hall et al.
Arthur R. Makadon, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Alan J. Davis, for appellee.
Dennis E. Haggerty, for appellee.
David Rudovsky, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellee.
Eugene H. Clarke, Jr., for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Watkins and Jacobs, JJ., dissent. Concurring Opinion by Cercone, J.
[ 217 Pa. Super. Page 219]
At 9 o'clock one evening in 1968, Victor Tomassini was attacked by a group of young men on a street in Philadelphia. After beating and robbing Tomassini, the group fled to a nearby house. Police officers began arriving at that house at about 9:05 p.m. and entered immediately to make arrests. Appellee Rosser was arrested by Lieutenant Handel and taken immediately to Episcopal Hospital, where Tomassini had been taken
[ 217 Pa. Super. Page 220]
for treatment. According to Lieutenant Handel's testimony, ten minutes elapsed between the time of his arrival at the house and his arrival at Episcopal Hospital. At the time of appellee Rosser's arrest, appellees Hood and Berry were arrested by Sergeant Kennedy at Episcopal Hospital, but they arrived when Lieutenant Handel and appellee Rosser were leaving. Sergeant Harrington arrested appellees Ronald and Earl Hall. He did not testify, however, and we do not know whether they, too, were taken to Episcopal Hospital.
At the hospital, Lieutenant Handel brought appellee Rosser into the accident ward. Inside, they found Tomassini at the registration desk, where he was awaiting treatment. He looked at appellee Rosser and said: "That's one of the men." Lieutenant Handel then left with appellee Rosser to take him to the station house. Tomassini presumably was then taken into a "back room" to receive treatment. Other police officers with other suspects arrived at the hospital and gathered in the accident ward. Among them were Sergeant Kennedy and appellees Hood and Berry. The entire group of suspects numbering eight to ten, was taken into the "back room" and lined up against a wall. According to Sergeant Kennedy, Tomassini thereupon identified appellees Hood and Berry as two of his assailants. He identified others, too. Tomassini, on the other hand, could only recall identifying Berry. He could not recall identifying Hood, nor either of the Hall brothers, although Sergeant Kennedy recalled hearing the name "Hall" at the hospital. At no time during this period was Tomassini in such a condition that hospital officials or the police thought he was in danger of dying or lapsing into unconsciousness so as to preclude his making an identification.
In any case, appellees Rosser, Hood, Berry, Ronald and Earl Hall were taken to the station house together with three other suspects. When Tomassini arrived
[ 217 Pa. Super. Page 221]
from the hospital, all eight were brought out to confront him. This time, he identified all five of the appellees and, according to a detective present, another young man. The latter was never tried, however.
About a week later, all five appellees appeared for their preliminary hearing. They were unrepresented at the hearing, during the course of which Tomassini again confronted all of them.
Prior to trial, appellees moved to suppress Tomassini's three out-of-court identifications and his in-court identification of them. They contended that since no lawyer was present at any of the out-of-court identifications, the identifications were inadmissible under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). Accordingly, it was the Commonwealth's burden to show by "clear and convincing evidence that the in-court identifications were based upon observations of the suspect[s] other than the [out-of-court] identification[s]." Id. at 240, 87 S. Ct. ...