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decided: June 21, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, Nos. 1808, 1809, and 1812, in case of Commonwealth of Pennsylvania v. Otis Tate.


Eugene H. Clarke, Jr., for appellant.

James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Wright, P. J., and Spaulding, J., did not participate in the consideration or decision of this case. Dissenting Opinion by Hoffman, J. Dissenting Opinion by Spaeth, J.

Author: Jacobs

[ 229 Pa. Super. Page 203]

Appellant was convicted by a jury on charges of burglary and robbery. The central issues raised on this appeal from the judgment of sentence challenge the ruling of the court below in refusing to suppress in-court identifications made by two victims of the crime and a police officer.

On the evening of December 8, 1971, three men forcibly entered the lobby of the Crawford Hotel in Philadelphia. Brandishing a shotgun, they restrained Robert Crawford, the proprietor, and three others while they searched the premises for valuables. The four victims were robbed, then bound hand and foot; and the trio departed carrying cash, jewelry, several radios, a television set, and three half-gallons of whiskey in red Christmas gift cartons.*fn1 The victims quickly

[ 229 Pa. Super. Page 204]

    untied themselves and summoned the police. Arriving promptly, the police obtained a general description of the robbers and began to search the neighborhood.

Within minutes, Officers Brennan and Smith observed two men emerging from an alley only one block from the hotel. One man was carrying a rifle and a television set, the other several red boxes. As the pair noticed the patrol car they ducked back into the alley, immediately reappeared without the packages and ran in different directions. Officer Smith pursued one of the men, Milton Smith, whom he soon apprehended. The other, Tate, dashed in front of the patrol car, and into an alley across the street. Officer Brennan gave chase, but the man escaped. Appellant was arrested 2 weeks later after Williams observed him in a bar and notified the police.

The issues in this appeal center upon the in-court identifications made by Crawford, Williams and Brennan. Appellant contends that Crawford's in-court identification should have been excluded because he failed to give the officers a detailed description of the robbers and because he failed to identify the appellant at a preliminary hearing. However, these factors affect only weight and credibility, not admissibility. Neither factor served to impermissibly taint the in-court identification. Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971).

[ 229 Pa. Super. Page 205]

Appellant also objects to the in-court identification made by Williams. After the appellant was arrested, Williams was conducted to Tate's jail cell to make an identification. This is an impermissibly suggestive procedure which provides "a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). As such it was properly suppressed by the court below. Foster v. California, 394 U.S. 440 (1969); United States v. Page 205} Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967). However, the court below permitted Williams to make an in-court identification because it found a sufficiently independent origin for the identification. Williams testified that the robbers were in the hotel for approximately 30 minutes, that the lobby was brightly illuminated and that he had ample opportunity to observe the men. We, therefore, find no error in the hearing judge's ruling. See Commonwealth v. Burton, 452 Pa. 521, 307 A.2d 279 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971); Commonwealth v. Pennebaker, 224 Pa. Superior Ct. 512, 306 A.2d 921 (1973); Commonwealth v. Baker, 220 Pa. Superior Ct. 86, 283 A.2d 716 (1971).

Appellant also objects to the in-court identification of Officer Brennan. Nine months after the robbery, in the course of preparation for trial, the district attorney presented Officer Brennan with a photographic display from which the officer selected the appellant's photo. Under the rule of Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919 (1970), the hearing judge suppressed this photographic identification because it was conducted in the absence of appellant's counsel.*fn2

[ 229 Pa. Super. Page 206]

The lower court permitted Officer Brennan to make an in-court identification because the identification had a sufficiently independent origin. Appellant challenges this ruling, alleging that a "fleeting glance" is insufficient to provide an independent origin. See Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Commonwealth v. Minifield, 225 Pa. Superior Ct. 149, 310 A.2d 366 (1973); Commonwealth v. Hall, 217 Pa. Superior Ct. 218, 269 A.2d 352 (1970). We are not prepared to say that the court below erred in finding an independent origin, see Coleman v. Alabama, 399 U.S. 1 (1970); Commonwealth v. Pugh, 226 Pa. Superior Ct. 50, 311 A.2d 709 (1973), however, it is not necessary to make a determination of this issue.

Because the facts surrounding Officer Brennan's opportunity to observe the appellant were brought out at trial, the jury was fully apprised of the underpinnings of the officer's identification. Additionally, the eyewitness testimony of Crawford and Williams was both consistent and positive, and each had ample and adequate opportunity to observe the appellant. We, therefore, find that the admission of Officer Brennan's in-court identification, even if erroneous, was harmless error under the doctrine of Chapman v. California, 386 U.S. 18 (1967). See Harrington v. California, 395 U.S. 250 (1969).

We have reviewed appellant's other arguments and find them to be without merit.

Judgment affirmed.


Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

I agree with the majority that the in-court identifications of appellant made by Robert Crawford and Nathaniel Williams were properly allowed into evidence.

[ 229 Pa. Super. Page 207]

I cannot agree, however, that Officer Brennan's in-court identification was properly admitted*fn1 or that its admission was harmless error.

While searching the area of the robbery, Officers Brennan and Smith drove past a small side street and

[ 229 Pa. Super. Page 208]

    noticed two men in the middle of the block. As the officers drove north on the street, the men darted out of an alley. One carried a rifle and a television set; the other carried red boxes. At the sight of the patrol car, the two men went back into the alley and then reappeared without the packages. Milton Smith, appellant's co-defendant, ran in a northerly direction and was soon apprehended by Officer Smith. The other suspect ran in front of the patrol car, across the street and into an alley. Officer Brennan pursued, but was unable to apprehend the man.

Nine months after the incident, and after indictment, Officer Brennan was interviewed by an assistant district attorney in the course of preparation for trial. To assure himself that Officer Brennan could make a competent identification, the district attorney presented Brennan with a photographic display*fn2 from which the

[ 229 Pa. Super. Page 209]

    officer picked appellant's photo. Because counsel was not present, the hearing judge suppressed this identification on the basis of Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), but allowed the officer to make an in-court identification, finding an independent origin for it.

The most significant factor in determining whether an independent basis exists is the opportunity of the witness to observe the defendant at the time of the incident. See, e.g., Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973). Officer Brennan had, at best, a fleeting glance of the suspect as he ran in front of the patrol car on a dark street. Officer Brennan's partner had the same view of the suspect but was unable to make an identification. There are no other indicia of "independent origin" present in the instant case. Officer Brennan gave no description of the suspect: cf. Commonwealth v. Minifield, 225 Pa. Superior Ct. 149, 310 A.2d 366 (1973); the officer had no prior contact with the appellant: cf. Commonwealth v. Pugh, 226 Pa. Superior Ct. 50, 311 A.2d 709 (1973), and, there was a significant lapse of time (9 months) between the incident and the photographic identification. Commonwealth v. Hall, 217 Pa. Superior Ct. 218, 226, 269 A.2d 352 (1970). There is simply no objective evidence in this record to support a finding that the in-court identification had a basis independent of the photographic identification. I believe it was error for the court to allow this identification.

Nor can I conclude that the admission of this identification into evidence was harmless error. Before an error may be declared harmless, "the Commonwealth

[ 229 Pa. Super. Page 210]

    must now demonstrate, beyond a reasonable doubt, that there was no reasonable possibility that the evidence complained of might have contributed to the conviction." Commonwealth v. Pearson, 427 Pa. 45, 49, 233 A.2d 552 (1967); Commonwealth v. Johnson, 227 Pa. Superior Ct. 96, 102, 323 A.2d 813 (1974). The fact that there is sufficient evidence to support a conviction apart from the erroneously admitted evidence does not satisfy the harmless error test. Commonwealth v. Pearson, supra.

Clearly, the identification made by Williams and Crawford are sufficient to support the conviction. Crawford's identification, however, was weakened by a previous failure to identify appellant at a preliminary hearing. Williams' motives for incriminating appellant were challenged by defense witnesses who stated that Williams and Crawford harbored personal grudges against the appellant. There is a "reasonable possibility" that Officer Brennan's identification served to strengthen the other witnesses' identification, and that the corroboration supplied thereby contributed to the jury's verdict. I would, therefore, conclude that the Commonwealth has not shown that the admission of the identification was harmless error.

The judgment of sentence should be reversed and appellant granted a new trial.

Dissenting Opinion by Spaeth, J.:

I continue to adhere to the views expressed in my concurring opinion in Commonwealth v. Jackson, 227 Pa. Superior Ct. 1, 12, 323 A.2d 799, 805 (1974), as to the continued validity of the rule expressed in Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919 (1970). In all other respects I join in the dissent of Judge Hoffman.

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