No. 2882 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 4440-A of 1977.
Roy Davis, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Brosky, Hoffman and Cirillo, JJ.
[ 302 Pa. Super. Page 81]
On July 30, 1977, appellant, Barry Brown, was arrested for the armed robbery of a Hardy's fast-food restaurant which occurred the previous night. Five of the restaurant's employees, including the manager, observed appellant during the robbery. Approximately ten minutes after the robbery, two of the employees, Matthew and Lisa Kennedy, were shown photographs by the police in an attempt to identify the robber. The other employees were shown photographs the next day. All identified appellant from the photographs shown them. Thereafter, appellant was arrested and charged with robbery, criminal attempt, terroristic threats, theft by unlawful taking, receiving stolen property and crimes committed with firearms. On October 6, 1977, a suppression hearing was held for the purpose of determining the admissibility at trial of the photographic identification. The Commonwealth produced Officer Robert Adams, the officer who had arranged the photographic array, who testified in detail as to the procedure used. Following Officer Adams' testimony, the District Attorney called Matthew and Lisa Kennedy to the stand. An exchange then took place between the court and the District Attorney, following which the District Attorney moved to dismiss appellant's petition for suppression. The court sustained the motion, stating that the evidence presented indicated that the procedure used was careful and fair and "exceptionally good."
[ 302 Pa. Super. Page 82]
On November 21, 1977, appellant's jury trial ended in a hung jury. At the second trial on March 15, 1978, he was convicted of robbery. On March 22, 1978, appellant made timely motions for new trial and in arrest of judgment. Following denial of these motions, appellant took this appeal. On appeal, appellant raises the single issue of whether it was error for the suppression court not to require the identification witnesses to testify about the photographic identification procedure.*fn1 Appellant contends that the Commonwealth did not meet its burden of proving admissibility by offering only the testimony of Officer Adams. He argues that he was deprived of his opportunity to examine the witnesses with regard to the manner in which the photographs were shown to them and what, if anything, was said to them by Officer Adams. Since the defense presented by appellant at trial was an alibi defense, he argues that the identification of him by the witnesses in question was critical to his defense.
Our standard of review here is limited to determining whether the findings of the suppression court are supported by the record and whether the inferences and legal conclusions based thereon are correct. Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978).
However, the suppression judge did not make findings of fact and conclusions of law here with regard to whether the witnesses should have been required to testify. It appears
[ 302 Pa. Super. Page 83]
from the judge's remarks that he was satisfied with the officer's testimony and felt that it was sufficient to show that the procedure used was not unduly suggestive.
Under Pa.R.Crim.P. 323(h), the Commonwealth has the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights. There can be no doubt that, at the very least, the Commonwealth must produce the photographic display at the suppression hearing. Commonwealth v. Hodge, 246 Pa. Super. 71, 369 A.2d 815 (1977); Commonwealth v. Jackson, 227 Pa. Super. 1, 323 ...