Louis Lipschitz, Lipschitz & Danella, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., took no part in the consideration or decision of this case. O'Brien, J., concurs in the result. Jones, C. J., and Pomeroy, J., dissent.
The appellant, Clarence Fowler, was convicted by a jury on November 9, 1972, of murder in the first degree, conspiracy, aggravated robbery, and burglary. Post-verdict
motions were denied, and appellant was sentenced to life imprisonment for murder, and to a concurrent term of ten to twenty years imprisonment for aggravated robbery and burglary. Sentence was suspended on the conspiracy conviction. Appropriate appeals followed to this Court and to the Superior Court. The appeals in the Superior Court were then certified to this Court.
Appellant's prosecution resulted from the killing of Reverend Clarence Smith. On May 18, 1970, Reverend Smith was shot and killed in his Philadelphia home in the presence of his daughter, Mrs. Beulah Hopewell. In a motion to suppress prior to trial, appellant sought to prevent the introduction of identification evidence. That motion was denied, and at trial the witness Hopewell identified appellant as one of two men involved in the crime. The second man has never been identified. The failure to suppress the identification evidence was assigned as error in post-verdict motions and again in this appeal. We agree that the identification evidence should have been suppressed because its use denied appellant due process of law. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
Appellant contends that the trial court "erred in failing to suppress identification evidence which was the result of impermissible suggestion arising from pre-lineup displays of photographs of the appellant and the line-up itself." He argues that the photographic identification procedure employed by the police prior to a chance encounter in a restaurant, at which the victim's daughter "recognized" appellant, created a substantial risk that what she "recognized" was the image that had been created
in her mind by the photographic identification procedure after the crime and not the image of the person she saw momentarily in her father's home. Appellant argues that the repeated display of his photograph to the victim's daughter in a manner which called attention to the photograph was unnecessarily suggestive making the daughter's "recognition" at the restaurant "all but inevitable." Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed.2d 402, 407 (1969). Appellant further argues that a line-up identification made two weeks after the chance encounter, and following yet another suggestive photographic identification procedure, involved even more risk of misidentification than was inherent in the daughter's earlier "recognition." Since the pretrial identifications involved a substantial risk of misidentification at trial, appellant contends that the daughter should not have been permitted to identify him in court. We agree.
Following a suggestive pre-trial identification procedure, a witness should not be permitted to make an in court identification unless the prosecution establishes by clear and convincing evidence that the totality of the circumstances affecting the witness's identification did not involve a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d at 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 88 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States ex rel. Thomas v. State of New Jersey, 3 Cir., 472 F.2d 735 (1973); United States v. Holiday, 3 Cir., 457 F.2d 912 (1972).
Whether the daughter's identification of the appellant at trial involved a likelihood of misidentification cannot be determined by considering the in-court identification in a vacuum. Trial testimony identifying one as the person observed at the time of a crime is a
one-on-one confrontation involving circumstances even more suggestive than those present at pretrial one-on-one confrontations. During the trial, the identifying witness knows that the defendant present in the courtroom has been accused, arrested, and is being tried for the crime. Prior to trial, such circumstances may not yet have occurred or may not yet be known to the witness. Thus, the testimony of a witness who will point an accusing finger at the defendant during the trial, should be prohibited unless the prosecution establishes by clear and convincing evidence at a suppression hearing that the witness's proposed trial identification will be reliably based on the witness's observation at the time of the crime, and that the identification was not induced by events occurring between the witness's observations at the time of the crime and the witness's in-court identification. Whether the prosecution has met its burden requires a consideration of the totality of the circumstances. Neil v. Biggers, supra; Simmons v. United States, supra.
A consideration of the totality of the circumstances requires a close examination of (1) the suggestive factors involved in the identification process, and (2) whether or not, despite the suggestive factors involved in the process, other factors are present which clearly and convincingly establish that the witness's identification has an "independent origin" in the witness's observations at the time of the crime. United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1166 (1967); Commonwealth v. Burton, 452 Pa. 521, 523, 307 A.2d 277, 278 (1973).
The dangers involved in the photographic identification process were clearly pointed out in Simmons v. United States, 390 U.S. at 383-384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253 (1968):
"It must be recognized that improper employment of photographs by police may sometimes cause witnesses
to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial ...