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decided: February 18, 1977.


Appeal From the Judgment of Sentence imposed October 21, 1975 of the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, Pennsylvania, at Nos. 158 and 164 of February Term, 1975. No. 342 October Term, 1976.


John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., joins in this opinion. Van der Voort, J., files a concurring and dissenting opinion in which Spaeth, J., joins. Price, J., files a dissenting opinion in which Watkins, President Judge, and Jacobs, J., join.

Author: Cercone

[ 246 Pa. Super. Page 32]

This is a direct appeal from a judgment of sentence entered by the Court of Common Pleas of Philadelphia County, Criminal Division. Appellant was convicted, after a non-jury trial, of robbery, simple assault, possession of instruments of crime, and conspiracy.

The Commonwealth's evidence showed that on December 21, 1974, appellant, accompanied by a friend, entered Lucky's Food Market at 17th and Federal Streets in Philadelphia. After walking around the store a short time he approached the cashier, displayed a gun, and told her to open the register. She complied and gave him the money inside. The owner of the store, David Weinstein, observed the incident and chased appellant out the door. Appellant fired a shot at Weinstein as he fled. Weinstein's positive in-court identification was the only evidence connecting appellant with the crime; neither the cashier nor the other store employee who testified at trial could identify him.

Appellant, who was sixteen years old at the time of the robbery, was arrested December 23, 1974 as the result of information received from an eyewitness who knew him. (This witness never testified.) At a certification hearing held January 20, 1975, it was determined that he would be tried as an adult. It was in the course of that hearing that Weinstein first identified appellant. Prior to the hearing, appellant filed a motion requesting the court to order a lineup. This was denied at the beginning of the hearing, before Mr. Weinstein entered the

[ 246 Pa. Super. Page 33]

    courtroom. It was stipulated that none of the witnesses had seen appellant or his picture since the robbery.

Appellant subsequently moved to suppress the preliminary hearing identification and the in-court identification, alleging that the pretrial identification was unnecessarily suggestive and tainted the in-court identification. The claim of suggestiveness was rejected and the motion denied as to the pretrial identification, with the result that the question of its effect on the in-court identification was not reached.

Appellant maintains that his motion for a lineup was improperly denied, and that the record should be remanded for a determination as to whether the certification hearing identification tainted the in-court identification.*fn1 United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Richman, 458 Pa. 167, 175-76, 320 A.2d 351 (1974). We agree.

The court below stated in its opinion denying the post-trial motions:

"It is obvious that identifications made by a witness of the defendant sitting at counsel table are always suggestive. It is the strong belief of this Court that the better practice would be to hold a prehearing lineup, if requested, 'to assure that the identification witness will first view the suspect at a lineup rather than in the magistrate's hearing room.' United States v. Smith, [154 U.S.App.D.C. 111,] 473 F.2d 1148, 1150 (D.C.Cir. 1972) cited in Commonwealth v. Garland, [234 Pa. Super. 241,] 339 A.2d 109, 111 (Pa. Super. 1975). In fact, such a grant of lineup might have been best in this case. However, it is clearly the present law of this Commonwealth that there is no constitutional right to a pretrial lineup. Commonwealth v. Evans, [460 Pa. 313, 333 A.2d 743] (1975).

[ 246 Pa. Super. Page 34]

It is therefore within the discretion of the judge at the . . . hearing to deny a motion for lineup, and we cannot find that there was an abuse of this discretion."

We think, under all the circumstances of this case, that there was an abuse of discretion. Appellant had a right, upon timely request, to have the identification evidence against him tested by a procedure less suggestive than a one-on-one confrontation in the course of a pretrial hearing.*fn2 As the court stated in United States ex rel. Riffert v. Rundle, 464 F.2d 1348, 1350 (1972):

"The inherent suggestiveness of any one-to-one identification may very well be increased when a witness is asked to positively identify a defendant in the context of a judicial proceeding already instituted against him."

The same point was made (by a prosecutor in the course of a panel discussion conducted by the National Legal Aid and Defender Association in Philadelphia, The Role of the Defense Lawyer at a Lineup in Light of the Wade, Gilbert, and Stovall Decisions, 4 Crim.L.Bull. 273, 282-84 (1968):

"All right, here is a situation, the first courtroom situation, in which the victim comes face to face with the alleged culprit in what I submit is the most suggestive situation of all. Clearly, if the witness didn't have a good look at that defendant at the time of the crime, that witness has a very good look at him at the time of the arraignment. The lighting is excellent; the procedures are leisurely; he or she is standing maybe 18 inches away. If there ever was a circumstance in which the witness gains the impression that at least someone around here thinks this is the man who committed a crime on me, that is it. . . ."

[ 246 Pa. Super. Page 35]

Another panelist, also a prosecutor, expressed a ...

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