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COMMONWEALTH v. TURNER (01/24/74)

SUPREME COURT OF PENNSYLVANIA


decided: January 24, 1974.

COMMONWEALTH
v.
TURNER, APPELLANT

Appeal from order of Superior Court, Oct. T., 1972, Nos. 584 to 586, inclusive, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1967, Nos. 1060, 1061, and 1063, in case of Commonwealth of Pennsylvania v. Edward Lee Turner.

COUNSEL

David Zwanetz, for appellant.

Maxine J. Stotland and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.

Author: Jones

[ 454 Pa. Page 521]

On May 8, 1967, a cabdriver was robbed at approximately 10 p.m., at 32nd and Pearl Streets in Philadelphia

[ 454 Pa. Page 522]

    by two men. Following the robbery, the cabdriver left his cab and within minutes found the police, who broadcast that a robbery had occurred. While the cabdriver was in the police car giving the description of the two robbers he heard a broadcast that two men had been apprehended one block from the scene of the robbery.*fn1 A minute or two later a police car arrived with the two men in the rear seat and the cabdriver positively identified them as his assailants. One of these two men was the appellant, Edward Lee Turner.

Appellant was tried on August 23, 1967 in the Court of Common Pleas of Philadelphia on charges of playfully and wantonly pointing a firearm, carrying a concealed deadly weapon and aggravated robbery. The trial judge, sitting without a jury, convicted appellant on all counts and sentenced him to 7 1/2 to 15 years imprisonment on the aggravated robbery charge.*fn2 No direct appeal was taken. Subsequently, a PCHA petition was filed and a hearing was held on January 27, 1972, at which time appellant was granted the right to file an appeal as though timely filed.*fn3 On appeal to the Superior Court, the judgment of sentence was affirmed, per curiam. We granted allocatur and this appeal followed.

Appellant claims that he was denied due process of law in that he was subjected to a prompt on-the-scene one-on-one identification, which was introduced by the prosecution at the trial. Specifically, appellant contends that being taken by the police to the cabdriver for identification and being viewed in the rear seat of the police car was overly suggestive and prejudicial.*fn4

[ 454 Pa. Page 523]

Evidence of identification should not be received at trial if the circumstances of the pretrial confrontation were so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification, Stovell v. Denno, 388 U.S. 293 (1967). See also Coleman v. Alabama, 399 U.S. 1 (1970); Foster v. California, 394 U.S. 440 (1969); Simmons v. United States, 390 U.S. 377 (1968); Commonwealth v. Mackey, 447 Pa. 32, 288 A.2d 778 (1972); Commonwealth v. Williams, 440 Pa. 400, 270 A.2d 226 (1970); Commonwealth v. Marino, 435 Pa. 245, 255 A.2d 911 (1969). However absent some special elements of unfairness, we do not believe that prompt on-the-scene confrontations fall within this ambit of suggestiveness. We find support for this position in the opinions of the federal courts which hold that an in-custody-at-the-scene identification made shortly after the commission of the crime does not violate due process. United States ex rel. Gomes v. New Jersey, 464 F. 2d 686 (3d Cir. 1972); United States v. Poe, 462 F. 2d 195 (5th Cir. 1972); United States v. Gaines, 450 F. 2d 186 (3d Cir. 1971), cert. denied, 405 U.S. 927 (1972); United States v. Perry, 449 F. 2d 1026 (D.C. Cir. 1971); United States v. Miller, 449 F. 2d 974 (D.C. Cir. 1971); United States v. Sanchez, 422 F. 2d 1198 (2d Cir. 1970); Harris v. Dees, 421 F. 2d 1079 (5th Cir. 1970); Russell v. United States, 408 F. 2d 1280 (D.C. Cir. 1969), cert. denied, 395 U.S. 928 (1969); Wise v. United States, 383 F. 2d 206 (D.C. Cir. 1967), cert. denied, 390 U.S. 964 (1968). The Russell court, which fully discussed the opposing policy arguments, recognized the high degree of suggestiveness in confrontations where a single suspect is viewed in the custody of the police. However it decided that the reliability inhering in an immediate identification and the rapid release of a mistaken suspect outweighed the prejudice. We believe that the close proximity in time and place does greatly reduce the chance of misidentification

[ 454 Pa. Page 524]

    and we agree that mistaken suspects ought not suffer the hardship and embarrassment inuring to protracted police custody. Furthermore, should the prompt on-the-scene confrontation fail to render a positive identification, the police may quickly resume their search for the guilty party.

In addition, we find no special elements of unfairness present in the instant identification procedure.*fn5 Appellant was apprehended near the scene of the robbery by a police officer responding to a radio broadcast which reported the crime. He was driven two blocks to be viewed by the cabdriver.*fn6 The cabdriver, who had seen the robbers face to face only minutes earlier, then made a positive identification without any suggestive questioning.*fn7 From the commission of the crime to the identification less than fifteen minutes had elapsed.*fn8

[ 454 Pa. Page 525]

Such a prompt identification of a freshly-caught suspect in the immediate vicinity of the crime does not amount to a denial of due process rights.*fn9

Appellant also claims that he was denied effective assistance of counsel in that his trial counsel failed to move to suppress the identification in a timely manner and that when the motion was made it was presented in merely a perfunctory fashion. While it is true that counsel did not make a motion to suppress before trial, counsel did make a motion to dismiss after the identification was introduced. The motion was overruled. We cannot say that the failure to make a motion to suppress before trial under these circumstances amounts to ineffectiveness of counsel. Trial counsel did file a timely objection at trial and we will not second guess trial counsel's decision where it has some reasonable basis to effectuating his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, as our holding here indicates, an objection at any stage would have been unpersuasive.

Finally, upon close examination of the record we find that counsel's efforts were hardly perfunctory. Counsel argued strenuously in appellant's behalf and his service to appellant fell within the standard set in Maroney, supra.

Judgment affirmed.

Disposition

Judgment affirmed.


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