No. 736 January Term, 1977, Appeal from the Order Entered by the Superior Court, Requiring that an Evidentiary Hearing be held to determine the validity of the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division Criminal Section, Nos. 158 and 164, February Term, 1975.
Steven H. Goldblatt, Deputy Dist. Atty., Gaile McLaughlin Barthold, Asst. Dist. Atty., Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Asst. Public Defender, Steven A. Monley, Asst. Public Defender, Philadelphia, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.
The pivotal issue in this case is whether an identification made during a certification hearing*fn1 should be excluded because of the court's denial of a prior request by the defense for a pre-hearing lineup. We granted the Commonwealth's request for review to answer the difficult question as to under what circumstances, if any, an accused is entitled to a pre-hearing lineup, and the subsidiary question in the event that there are circumstances when such lineups are required upon demand, the remedy for failing to accede to such request.
The Commonwealth's evidence at trial established that on December 21, 1974, appellee and a friend entered a food market in the City of Philadelphia. He browsed about the store for a short period of time, then approached the cashier, pulled a gun and demanded the money in the register. After obtaining the contents of the cash drawer, appellee
ran from the store and was followed by Mr. Weinstein who unsuccessfully attempted to overtake him. During the chase, appellee fired a shot in the direction of his pursuer. Weinstein testified that he observed appellee for more than a minute in the store before appellee approached the cashier. Mr. Weinstein's identification of appellee at trial as the person who robbed his store and fired the shot at him was the only evidence connecting appellee to the crime. In response, the appellee sought to establish the defense of alibi.
In the course of the certification hearing, Weinstein first identified appellee as the perpetrator of the robbery. Prior to the hearing, appellee filed a motion requesting a lineup, which request was denied at the beginning of the hearing before Mr. Weinstein entered the courtroom. Appellee, subsequently, moved to suppress the certification hearing identification and the in-court identification, alleging that the certification identification was unnecessarily suggestive and tainted the in-court identification at trial. The trial court concluded that there was no constitutional right to a pre-trial lineup and that the denial of the request for a lineup in this case did not constitute an abuse of discretion. In the Superior Court's opinion announcing its judgment,*fn2 Judge [now President Judge] Cercone, although indicating that the denial of the request for a pre-hearing lineup under the facts of this case amounted to an abuse of discretion,*fn3 proceeded to also hold that the identification at the certification hearing was unduly suggestive and thus tainted. Commonwealth v. Sexton, 246 Pa. Super. 30, 36, 369 A.2d 794, 797 (1977). Consequently, that court directed that the cause be remanded to determine whether the in-court identification at trial was tainted by the earlier one-on-one confrontation at the certification hearing. We granted review because of
the troublesome questions raised in this appeal, as evidenced by the different views expressed by the various judges who have considered the problems.
At the outset, it is important to separate the question of the propriety of the court's refusal to permit the pre-hearing lineup and the asserted suggestiveness of ...