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COMMONWEALTH PENNSYLVANIA v. FRANCISCO OLIVENCIA (04/20/79)

decided: April 20, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANCISCO OLIVENCIA, APPELLANT



No. 403 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 1730-*fn17361 January Term, 1976.

COUNSEL

Joseph J. Frieri, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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

Author: Price

[ 265 Pa. Super. Page 443]

Following a jury trial commenced on August 25, 1976, appellant was convicted of two counts of robbery,*fn2 one count of aggravated assault,*fn3 and one count of kidnapping.*fn4 Motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of from ten to twenty years on each of the robbery charges, sentences to run concurrently, from five to ten years on the aggravated assault charge, sentence to run concurrently, and from ten to twenty years on the kidnapping charge, sentence to run concurrently with the robbery sentences.

This appeal was originally submitted to us on briefs on January 10, 1978, but we were forced to remand on December 29, 1978, 263 Pa. Super. 624, 400 A.2d 641, for completion of the record. The complete record was certified to us on

[ 265 Pa. Super. Page 444]

January 17, 1979. We may now consider the questions herein presented.

On appeal, appellant claims that he was deprived of his rights to due process and to effective assistance of counsel because his trial counsel failed to: interview an alibi witness; argue post-trial motions; raise prosecutorial misconduct at post-trial motions; have the assistant district attorney's summation to the jury stenographically recorded; and move for separate trials for the offenses which involved a police officer, Raymond Schultz. Appellant also contends that the in-court identification of him made by Jose Serrano was tainted by a suggestive pre-trial confrontation and was therefore, inadmissible. Appellant's final contention is that he was deprived of his right to counsel when the trial court refused to replace trial counsel with another attorney. Finding no merit to any of these contentions, we affirm the judgment of sentence of the court below.

The facts pertinent to our consideration of the instant appeal are as follows. On December 25, 1975, while on duty, Officer Raymond Schultz responded to a call he received at 5:40 a. m., reporting a robbery at a gas station in Philadelphia. When he arrived at the scene of the robbery, Officer Schultz was informed by Jose Serrano, who worked as an attendant at the gas station, that the suspect was a Puerto Rican male wearing a red and white sweater, and that following the robbery, the miscreant had run in a northerly direction on Marshall Street. Officer Schultz then proceeded to cruise the area in his police patrol car. A few blocks from the gas station, he encountered appellant, a Puerto Rican male, who was wearing jeans and a brown, black, and white plaid jacket. Officer Schultz intended to ask appellant if he had seen anyone matching the description, but appellant pulled out a gun, pointed it at Officer Schultz's face, and ordered him out of his car. Appellant took Officer Schultz's weapon, then ordered him back into the car and had him drive appellant to a location several blocks away. Appellant disembarked there and walked up the street. Officer Schultz followed, but was not readily able to locate

[ 265 Pa. Super. Page 445]

    appellant. Officer Schultz called for backup help, then continued his search. One of the other officers summoned, John Yeager, followed footprints he spotted in the freshly-fallen snow. The prints led him to an apartment. He knocked on the door and was greeted by a white male and a white female. The female, Cecilia Valesquez, invited Officer Yeager in, and while inside the apartment, he noticed a plaid jacket. A search of the premises was conducted, and appellant was discovered locked inside a closet.

Jose Serrano, who identified appellant and testified against him at trial, first identified him in an out-of-court one-to-one confrontation at the preliminary hearing. Besides his encounter with appellant on the night of the offense, Mr. Serrano testified that he knew appellant from the neighborhood, but not by name. Appellant moved to suppress this identification, but his motion was denied by the court below. At trial, and in post-trial motions, appellant continued to take issue with the "suggestiveness" of the pre-trial identification. Appellant contends that Jose Serrano's in-court identification of appellant was tainted by the "suggestive" pre-trial confrontation, and therefore, should have been ruled inadmissible.

Without deciding whether the preliminary hearing was unduly suggestive, we hold that there was sufficient evidence on the record to justify the finding of the lower court that the in-court identification arose from a source independent of the confrontation at the preliminary hearing. Given a suggestive out-of-court confrontation, an in-court identification is admissible if, considering the "totality of the circumstances," Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the subsequent in-court identification arose from an origin "sufficiently distinguishable" from the illegal encounter as "to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); see 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. Diggs, 260 Pa. Super. 349, 394 A.2d 586 (1978).

[ 265 Pa. Super. Page 446]

To determine the existence of this independent basis, the time honored criteria promulgated ...


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