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COMMONWEALTH v. FOSTER (06/22/71)

decided: June 22, 1971.

COMMONWEALTH
v.
FOSTER, APPELLANT



Appeal from order of Court of Common Pleas of Washington County, May T., 1969, No. 419, in case of Commonwealth of Pennsylvania v. James Foster, a/k/a James Lee.

COUNSEL

Chris Vlachos, Assistant Public Defender, for appellant.

Jack H. France, Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 219 Pa. Super. Page 129]

The appellant, James Foster, was charged with the crimes of armed robbery, pointing firearms, and carrying a concealed weapon arising out of the robbery of a supermarket in Donora, Pennsylvania on January 27, 1969. After trial before a judge and jury, Foster was found guilty on all three charges. He made motions for new trial and in arrest of judgment before the lower court and from the denial of these motions has appealed to our court. Several grounds for error have been assigned.

Appellant first claims that four witnesses who identified him as being one of the men who participated in the holdup had viewed him after the crime in improper lineups and other confrontations at the police station and at his preliminary hearing. He states that witnesses were brought to view him alone in his cell and that he had no counsel during these confrontations. While the identification evidence of these witnesses was not challenged in a pretrial motion to suppress, defendant's counsel argued at trial against the admission of identification testimony presented by the witnesses in question and later moved that such testimony be stricken from the record. The trial judge denied these motions. We believe his actions were proper.

The Supreme Court of the United States established guidelines for lineups and other pretrial confrontations in the cases of U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 and Gilbert v. California, 388 U.S. 263,

[ 219 Pa. Super. Page 13087]

S. Ct. 1951, 18 L. Ed. 2d 1178, both decided on June 12, 1967. In these cases, the Court pointed out that the relevant inquiry of the appellate court is whether the in-court identification was tainted by the improper out-of-court confrontations. Often, as was the situation in Wade and Gilbert, supra, a case may be remanded for further hearings in the lower court on this issue. This action is not necessary here. The lower court in the instant case made certain that there was an inquiry, on the record, directed to each witness concerning the exact basis of their identification of Foster at the time of trial. Each of the witnesses who provided identification testimony stated unequivocally that they were relying exclusively on their viewing of the defendant at the scene of the holdup in making their in-court identifications. They each stated that they had ample opportunity to see the men who perpetrated the crime, and that on that basis alone, they were sure that Foster was one of those men. Under the circumstances, we feel Wade and Gilbert, supra, have been satisfied.

Our review of the facts of the pretrial confrontations which occurred leads us to reject the further argument of appellant that they were so unnecessarily suggestive, and so conducive to irreparable mistaken identification, that there was a denial of due process. See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Four witnesses testified that they could identify Foster as having been one of the robbers. One of the witnesses, the head of the meat department in the market, did not see the defendant between the time of the robbery and the time of the trial. However, he was certain that Foster was a participant in the crime.

A second witness was a police officer who testified he was off duty and was a ...


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