No. 2153 October Term 1978, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Div., Crim., Sec. at Nos. 1364-1367 January Term 1978
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 280 Pa. Super. Page 157]
Earl Townsend, appellant, was convicted in a non-jury trial in the Court of Common Pleas of Philadelphia of unauthorized use of an automobile, possession of an instrument of crime, robbery, and aggravated assault. Post-verdict motions were denied, and concurrent judgments of sentence of three to seven, one to two, and two and one-half to five years imprisonment were imposed. This appeal followed.
There is one assignment of error, namely, the court's permitting into evidence at trial the testimony of Josephine Brown who said she witnessed the crimes and identified Townsend as the guilty party. In pertinent part, the record discloses this.
Townsend filed a timely pre-trial motion to suppress Brown's testimony identifying Townsend, and a hearing on this motion was held on April 3, 1978. Brown testified to witnessing the crimes, to giving a description of the criminal to the police shortly thereafter, and to identifying Townsend
[ 280 Pa. Super. Page 158]
later in the police station. The hearing judge ruled the confrontation in the police station occurred under impermissibly suggestive circumstances and ordered Brown's testimony as to this suppressed. However, this judge refused to rule on the admissibility of any other testimony Brown might give in court identifying Townsend. The judge then recused himself from the case.
About two weeks later or on April 28, 1978, a second hearing was conducted before another judge to determine if any in-court testimony by Brown identifying Townsend should be suppressed. At the conclusion of this hearing, this judge refused to order suppression of Brown's in-court testimony. Brown was permitted to testify at trial, to describe the occurrence, and to identify Townsend as the perpetrator. The court concluded Brown's in-court identification had a source sufficiently independent of the police station confrontation and was not tainted thereby.
It was the Commonwealth's burden to establish by clear and convincing evidence that Brown's in-court identification testimony had a basis independent of the police station confrontation. Cf. Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976). Since the suppression court ruled this was the case, in evaluating the correctness of this ruling, we consider only the Commonwealth's evidence and so much of the evidence presented by the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978). In sum, the issue is this: was the evidence clear and convincing that Brown's in-court identification testimony stemmed from Brown's original ...