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decided: November 3, 1978.


No. 501 October Term, 1977, Appeal from the Judgment of Sentence imposed on November 17, 1976, by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 252, 253 of February Term, 1976.


John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Hoffman, J., files a dissenting opinion, in which Spaeth, J., joins. The decision in this case was reached before the retirement of Hoffman, J. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 260 Pa. Super. Page 235]

Appellant was convicted following a jury trial of rape,*fn1 robbery,*fn2 criminal conspiracy,*fn3 and two counts of possession of instruments of crime.*fn4 Post-verdict motions were denied, and appellant was sentenced. For the reasons stated herein, we affirm.

On January 6, 1976, at approximately 12:00 p. m., a young black man entered a Philadelphia employment agency, operated by Mrs. Lila Fox, and requested an application. The only other person then in the office, Mrs. Loretta Collier, was also applying for employment. When Mrs. Fox went to the stairway to see her daughter off to lunch, she observed two other men lingering on the steps to the second floor office.

Mrs. Fox returned to her desk, and one of the men who had been on the steps entered the office within moments. At gunpoint, Mrs. Fox was ushered by the second intruder into a back room, where she was blindfolded and raped twice. The third man assisted robbing Mrs. Collier and removing company checks from the front office. Appellant and his brother, a co-defendant, were arrested several hours later at their home. Employment agency checks were recovered in a search of their living quarters.

[ 260 Pa. Super. Page 236]

Mrs. Fox made positive identifications of both defendants at a line-up and preliminary hearing. Mrs. Collier identified appellant's brother and co-defendant on both occasions, but failed to identify appellant. At the hearing on a motion to suppress all identifications and physical evidence, the court determined that the line-up identifications were tainted, reasoning that the line-up was impermissibly suggestive in that both appellant and his twin co-defendant were in the line-up. The court found that the preliminary hearing was also conducted under impermissibly suggestive circumstances, and its suppressed those identifications. The court held that Mrs. Fox's in-court identifications of the co-defendants and Mrs. Collier's in-court identification of appellant's co-defendant were admissible, resting upon independent bases.

Appellant's first contention is that the court below erred in refusing to grant a mistrial when Mrs. Collier unexpectedly identified appellant at trial. This was the first time that Mrs. Collier identified appellant. She was unable to identify appellant at the line-up and gave contradictory identifications at the preliminary hearing. Finally, at the suppression hearing, Mrs. Collier's testimony shows that she did not observe appellant's face when he first came into the office, because at that time his back was to her as he spoke to Mrs. Fox and forced her into the back room. The court below concluded that Mrs. Collier's in-court identification would not be suppressed because it did not follow identifications made in the former improper proceedings. The trial judge allowed the testimony but promised to give cautionary instructions, which he did.

[ 260 Pa. Super. Page 237]

Although identification evidence is clearly sufficient to support a conviction, even in the face of contradictory alibi evidence, Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), there are evidentiary and constitutional parameters which must be respected. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court found that the sixth amendment right to counsel applied to identification confrontations conducted after the initiation of adversary proceedings. Stovall v. Page 237} Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), determined that some identification confrontations may be so impermissibly suggestive as to lead to irreparably erroneous identifications, and thus constitute deprivations of due process of law. A later in-court identification must have a basis independent from the infirm proceeding.

There are other cases which involve proper identification proceedings, resulting in no identification or qualified identification. In such a situation, the subsequent in-court identification is at once admissible. In these cases, however, the supreme court has cautioned:

"[W]here the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution." Commonwealth v. Kloiber, supra 378 Pa. at 424, 106 A.2d at 826.

The instant case presents an interesting blend of the two levels of identification evidence analysis. The pre-trial identification procedures were ruled impermissibly suggestive, thus indicating that an in-court identification would have to rest on an independent basis. At the same time, the witness exposed to those proceedings made no identifications at them, thus necessitating that a later in-court identification be accompanied by a Kloiber charge. Appellant insists that the protections of due process, first urged in relation to identification evidence in United States v. Wade, supra, must be extended in this case. Therefore, appellant maintains that the Commonwealth's failure to establish an independent basis for Mrs. Collier's in-court identification is fatal to the Commonwealth's case, and that a new trial is required.

Appellant points to Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976), in support of his position. In that case, photographs were repeatedly displayed to a murder victim's

[ 260 Pa. Super. Page 238]

    daughter. The appellant's photograph was contained in several of the displays, but the witness failed to make an identification. The appellant was then arrested, placed in a line-up, and asked to speak. The witness identified him then, and she repeated her identification at trial. The supreme court found that the suppression court erred in failing to suppress the witness's identification, since no independent basis was established. The court declared:

"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. (citations omitted)

The court thus indicated that the whole area of identification evidence is a particularly ...

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