Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1973, No. 1226, in case of Commonwealth of Pennsylvania v. Frank Jenkins.
Paul Messing and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
David Richman, James T. Ranney, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.
[ 232 Pa. Super. Page 525]
Appellant was tried before Judge DiBona, sitting without a jury, and was found guilty of burglary*fn1 and placed on three years probation. On this appeal he contends that the admission of a pre-trial identification and of an in-court identification violated his constitutional rights.
[ 232 Pa. Super. Page 526]
At the suppression hearing Officer Birdsong testified as follows. On January 23, 1973, shortly after midnight, he and his partner were on routine patrol when they spotted two men climbing out of a service station through a broken window. They immediately pulled their car onto the station's parking lot and headed toward the window. Officer Birdsong came to within one to two and a half car lengths of the two men. The area was well-lit by street lamps and an overhead light in the station, and he observed one man, whom he later identified as appellant, full face. He chased appellant, and during the chase saw one side of appellant's face, and his partner chased the other man. Appellant escaped, but the other man was caught. He informed the officers that appellant, whom he identified by name and address, had been his confederate. The officers went at once to appellant's address, but appellant was not at home. Two hours later Officer Birdsong returned to appellant's home with a detective. This time appellant was at home, and Officer Birdsong identified and arrested him.
At the conclusion of this testimony, the court denied the motion to suppress the pre-trial identification and any in-court identification. The case proceeded immediately to trial, Officer Birdsong's testimony at the suppression hearing being incorporated into the trial record. The officer was called briefly to explain a discrepancy between that testimony and a report given to an investigating detective. The report indicated that the officer's partner, rather than he, had chased appellant. The officer, however, re-affirmed his testimony. Appellant was found guilty, post-trial motions in arrest of judgment or for a new trial were denied, and this appeal followed.
Appellant argues specifically that the pre-trial identification should have been suppressed because he was denied his right to counsel and because the procedure used was unduly suggestive, and that the in-court identification
[ 232 Pa. Super. Page 527]
should have been suppressed as tainted by the pre-trial identification.
An accused has a right to counsel at any critical stage of prosecution. United States v. Wade, 388 U.S. 218 (1967) (post-indictment line-up held to be a critical stage). In addition, an identification is inadmissible when obtained by a procedure "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny an accused due process. Stovall v. Denno, 388 U.S. 293, 302 (1967). See also United States v. Wade, supra; Gilbert v. California, 388 U.S. 263 (1967). Finally, if a pre-trial identification is inadmissible, either because the accused was denied counsel or because of suggestiveness, an ensuing in-court identification is also inadmissible unless it can be shown ...