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COMMONWEALTH v. TATE (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
TATE, APPELLANT



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.

COUNSEL

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); ...


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