Nos. 164 and 165 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia, at Nos. 1431-1432 February Term, 1975
Gerald A. Stein, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
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Appellant was convicted by a jury of murder of the first degree and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction; sentence was suspended for the conspiracy conviction. This appeal followed.
This case arose from the death of James Price on December 29, 1974, at Holmesburg Prison in Philadelphia. Price was an inmate there, as were appellant and co-defendants Theodore Moody and Theodore Brown.*fn1
On the date of Price's death, appellant, Moody and Brown were all inmates of D Block, a maximum security area of Holmesburg Prison. The inmates of D Block were not permitted to leave it, nor were other inmates permitted to enter it without an institutional escort. Price was seen alive at 8:00 a. m. on the date of his death. At 3:15 p. m. that day, Philip Harris, a guard, discovered Price's dead body in a vacant cell while making a routine inspection. The body was hanging by a sheet from a ventilator grating. Dr. Halbert Fillinger, Assistant Philadelphia Medical Examiner, conducted a post-mortem examination of the body and determined that death resulted from strangulation by a ligature consisting of three shoelaces braided together.
[ 271 Pa. Super. Page 233]
The ligature was wrapped tightly around Price's neck when the body was discovered. Fillinger also noted the victim had been tortured with a sharp object prior to death. After the body was discovered, all of the inmates of D Block were locked in their cells. One of the inmates, Calvin Hunter, called Harris over to his cell and said, "They killed that guy back there, didn't they?" Hunter gave information about the killing to the authorities and testified at a preliminary hearing. At that hearing Hunter testified that while locked in his cell on the day of the incident, he saw appellant, Moody, Brown and the victim, Price, walk by in the direction of the vacant cell. He then heard someone yell several times, "Help, they're killing me." Appellant, Moody and Brown then walked past Hunter's cell without the decedent. Hunter died before appellant's trial and the court, therefore, admitted his preliminary hearing testimony into evidence. The foregoing evidence adduced at trial supports the verdict of murder of the first degree.
Appellant initially asserts the court below erred in denying his motion to suppress two photographic identifications as impermissibly suggestive. On the evening of the day Price was slain Calvin Hunter was interviewed by police homicide detectives. During that interview Hunter provided the police with a description of appellant and of appellant's accomplices; he also identified appellant by name, explaining that he knew appellant from his neighborhood prior to incarceration. Thereafter, Hunter was shown photographs of forty-four of the fifty inmates present in D Block on the day of the killing. The photographs were attached to prison cards which included the name of the person depicted. It is this last factor which appellant now asserts rendered the identification unduly suggestive.
While it is true that the photographic identification here complained of contained an element of suggestiveness, our analysis nevertheless, requires more. Evidence so obtained will not be excluded unless the totality of the circumstances shows that the identification procedure was "so impermissibly suggestive as to give rise to a very substantial
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likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Commonwealth ...