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decided: March 28, 1979.


No. 739 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7609332.


Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.

Rodney W. Baxter, Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 264 Pa. Super. Page 507]

This appeal by the Commonwealth arises from the order of the court below suppressing two prospective in-court identifications of appellee.*fn1 For the reasons stated herein, we affirm in part and reverse in part.

Evidence adduced at the suppression hearing is as follows. At approximately 9:05 a. m. on November 23, 1976, three men entered the A&P Supermarket on Scranton Avenue in Wilkinsburg. One of the men held the head cashier, Rose Ference, at gunpoint and ordered her to open the cash register, whereupon he removed the available money. Concurrently, the second intruder compelled, again at gunpoint, the store manager, George Obusek, to open the safe, which was summarily emptied of cash. The third robber, later identified as appellee, eventually positioned himself at the rear of the store where he held the remainder of the customers and employees at gunpoint in a small room.

[ 264 Pa. Super. Page 508]

After approximately ten to fifteen minutes, all three intruders fled the premises.

While the robbery was in progress, the Wilkinsburg Chief of Police monitored a call on the police radio reporting the incident, and he immediately proceeded to the A&P. Upon arriving at the scene, he observed two men run behind the store, enter a waiting car, and speed away. Subsequent to a chase in which Chief Hodgins' car absorbed gunfire from the occupants of the suspect vehicle, the latter was abandoned, and its occupants escaped on foot. A non-entry observation of the vehicle revealed a sum of money, a gun, and several other items positioned on the front seat, while a license check identified appellee as the car's owner. Pursuant to this information, two officers were dispatched to appellee's home, but prior to their reaching his residence, appellee telephoned the police and reported his car stolen.

At appellee's home, the officers requested that he accompany them to locate the allegedly stolen vehicle. Appellee consented to this, but following a brief stop at the police station, he was taken to the supermarket*fn2 where he was identified by both Ms. Ference and Mr. Obusek as one of the robbers and immediately placed under formal arrest. Mr. Obusek later repeated this identification at the preliminary hearing.

The Commonwealth does not dispute the lower court's three stage analysis of the initial identification: that is, appellee was effectively under arrest at the time he accompanied the officers from his home; such an arrest was not supported by probable cause; the illegal arrest fatally tainted the on-the-scene identification. Rather, it argues that the in-court identification had a basis independent of any prior illegality and was thus purged of any possible taint. Although the issue rests on fine factual distinctions delineated infra, we can accept the independent basis rationale of the Commonwealth only with respect to the identification testimony of Ms. Ference.

[ 264 Pa. Super. Page 509]

Subsequent to an illegal arrest or a suggestive out-of-court identification, an in-court identification is admissible if, considering the totality of the circumstances, it is determined that the in-court identification had an independent origin sufficiently distinguishable from the impermissible pre-trial encounter so as to be purged of any taint of that initial illegality. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Taylor, 472 Pa. 1, 370 A.2d 1197 (1977); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976); Commonwealth v. Ryan, 253 Pa. Super. 92, 384 A.2d 1243 (1978). This is merely a particular application of the basic tenets propounded in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), in which the United States Supreme Court concluded:

"We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Id. at 487-88, 83 S.Ct. at 417 (citation omitted).

Such an independent basis need not be established by the Commonwealth beyond a reasonable doubt, but only by the existence of clear and convincing evidence. Commonwealth v. Connolly, supra; Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976); Commonwealth v. Diggs, 260 Pa. Super. 349, 394 A.2d 586 (1978). The rationale behind such a rule was made explicit in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972): "No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusors. . . . [T]he only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome." Id., 448 Pa. at 264, 293 A.2d at 37.

[ 264 Pa. Super. Page 510]

In order to determine the existence of this independent basis, we have adopted certain criteria originally formulated by the federal courts. In United States v. Wade, supra, the Supreme Court determined that consideration should be given to

"the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." Id. at 241, 87 S.Ct. at 1940.

See also Commonwealth v. Taylor, supra; Commonwealth v. Cox, supra; Commonwealth v. Hodge, 246 Pa. Super. 71, 369 A.2d 815 (1977).

Obviously, application of these criteria requires a careful scrutiny of the circumstances surrounding the witness' observation and the initial identification. Instantly, the testimony of the two identifying witnesses will be reviewed in sequence.

Mr. Obusek testified that on the morning of the robbery he had entered the store from the lower part of the building when he was confronted by a masked gunman who demanded that he open the store safe. After complying, he was ushered down an isle, at the end of which stood the intruder later identified as appellee. The aisle was well lighted and Mr. Obusek kept his head erect at all times. The man at the end of the aisle made no attempt to conceal his features, and his facial traits became discernable to Mr. Obusek when he was three or four feet away. As the two passed at a distance of from one to two feet, their eyes did not meet, although Mr. Obusek obtained a full view of the intruder's face. Mr. Obusek, however, testified that as he was approaching the robber, he was staring at the gun in the latter's hand for fully two or three feet after his features came into focus. Consequently, his view of the intruder's face for the critical three or four feet was of short duration.

[ 264 Pa. Super. Page 511]

Specifically, the witness stated that he gave the man's face only "[a] glance. You look at a man, and you look away. I mean, you're not -- I'm not studying him." N.T. 91 (emphasis added). After they had passed, Mr. Obusek did not turn back for another view.

Despite the fleeting nature of the observation, Mr. Obusek was able to provide police at the A&P with a detailed description of the robber's clothing -- brown leather coat, light shirt or sweater, dark trousers, gloves, brown tassel cap, no glasses -- and a general description of his physical characteristics -- black, mustache, 140-45 pounds, height in the vicinity of 5'6"-5'7". Subsequently, when police brought appellee to the scene, Mr. Obusek was asked, "Is this the fellow that was involved in the robbery?*fn3 He then peered into the window of the police car for five to ten seconds. Appellee, unhandcuffed, was in the rear seat beside another officer. Failing to recognize appellee at that time, the witness requested that he alight from the car. After appellee complied, Mr. Obusek scrutinized him for one to two minutes, then positively identified him as one of the robbers. He later testified at the suppression hearing that his identification was based at least partially on the fact that appellee was attired in a manner similar to that of the

[ 264 Pa. Super. Page 512]

    robber (appellee at the time of identification was not wearing a coat allegedly worn by the intruder).

Applying the Wade criteria, it is clear that the Commonwealth failed to sustain its burden of establishing an independent basis for an in-court identification. Mr. Obusek's view of the robber's face, while unobstructed and in a well lighted area, was by his own admission nothing more than a glance rather than a studied observation. Indeed, for the few feet in which the intruder's face could be examined, the witness was more concerned, understandably, with the gun being trained on him. In Commonwealth v. Fowler, supra, it was held that a witness' "momentary look" or "glance" at the defendant was insufficient to demonstrate an independent basis following an illegal identification. The observation here was similarly deficient.

While it is true that the description given immediately following the event corresponded with appellee's actual appearance, the description was so general as to vitiate any probative worth. See Commonwealth v. Fowler, supra, 466 Pa. at 214-15, 352 A.2d at 25 (black, dark suit, slender build, aged 19-21, deemed too general). Further, although it has previously been noted that a detailed description of an individual's clothing evidences a good opportunity for observation and militates in favor of finding an independent basis, see, e. g., Commonwealth v. Cox, supra, those cases also contained proof that the identifying witness secured an extended view of the suspect. Such is not the case here. Finally, even in the initial identification which closely followed the robbery, Mr. Obusek hesitated when confronted with appellee, and while the witness never failed not to identify appellee, nor mistakenly identify someone else, he never had the opportunity to err in either of these respects.

This analysis leads us to conclude that Mr. Obusek's in-court identification did not originate in his observations during the crime, but was implanted by the improper on-the-scene identification. Although not blatantly suggestive, we

[ 264 Pa. Super. Page 513]

    cannot say that the taint supplied by the initial illegality was sufficiently obviated by prior, independent observation.*fn4

Ms. Ference's testimony, however, provides a different perspective. She testified that she observed three individuals enter the store. The man later identified as appellee wore no disguise, wielded a gun, and asked her the whereabouts of the manager. The witness was able to observe him for a period of three to four minutes at a distance of perhaps ten feet during the robbery, noting that "I did kind of get a look at him, but he was kind of crouched." N.T. 103. Nevertheless, she "kind of tried to remember his features." N.T. 104. At the suppression hearing, the witness described those features as a height of 5'6" or 5'7", a weight of approximately 150 pounds, and a prominent mustache. She could recall no details of the individual's attire. When the police arrived on the scene with appellee, Ms. Ference immediately pronounced him the person she had viewed in the store, although she admitted being "pretty rattled up by then . . . ." N.T. 105.

In contrast to the testimony of Mr. Obusek, we find that Ms. Ference's testimony establishes an independent basis for an in-court identification. The witness observed the robber from close range, under excellent lighting conditions, for three to four minutes. The intruder's facial features were completely unobstructed. Cf. Commonwealth v. Taylor, supra (witness' view of robber obstructed by "mirror-type" sunglasses and a hat). While the lower court appeared to emphasize the shortness of the time involved, numerous cases have previously held a similar period of observation sufficient to establish an independent basis. See United States ex rel. Hollman v. Rundle, 329 F.Supp. 1052 (E.D.Pa.1971) (robbery -- observation time of five minutes); Commonwealth v. Thomas, 460 Pa. 442, 333 A.2d 856 (1975)

[ 264 Pa. Super. Page 514]

(robbery -- three to six minutes); Commonwealth v. Montgomery, 246 Pa. Super. 371, 371 A.2d 885 (1977) (robbery -- five minutes); Commonwealth v. Sansbury, 229 Pa. Super. 60, 323 A.2d 820 (1974) (robbery -- five minutes); Commonwealth v. Minifield, 225 Pa. Super. 149, 310 A.2d 366 (1973) (sodomy, burglary -- three to four minutes).

Although it is true that Ms. Ference could clearly verbalize her concept of appellee's facial features only by noting the prominent mustache, it is not unusual to recall conceptual unities rather than disjointed, particularized features.*fn5 She was prompt and unwavering in her identification at the scene and at the suppression hearing. The time was ample not only to observe the robber, but as she testified, to study him. While it is of course for the fact-finder to pass ultimately on the issue of any witness' credibility, we can conclude Ms. Ference had a basis for identification independent of the tainted on-the-scene identification.

We therefore affirm the suppression order as applied to the identification by the witness Obusek and reverse that portion of the order applying to the in-court identification of the witness Ference. The case is remanded for proceedings consistent with this opinion.

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