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.
[ 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 ...