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COMMONWEALTH PENNSYLVANIA v. ANTHONY C. SHAW (06/11/82)

SUPERIOR COURT OF PENNSYLVANIA


June 11, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY C. SHAW, APPELLANT

No. 1269 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, No. 1730, May Term, 1979.

Before Beck, Watkins, and Hoffman, JJ.

Per Curiam:

Judgment of sentence affirmed.

MEMORANDUM

Appellant contends that (1) he was not timely tried under Pa.R.Crim.P. 1100, and (2) the lower court erred in not suppressing an in-court identification. We disagree and, accordingly, affirm the judgment of sentence.

I.

A criminal complaint for bank robbery was filed against appellant on May 4, 1979. He filed a motion to suppress evidence and by order the lower court reserved hearing on it "for time of trial." Trial was originally scheduled for September 20, 1979, but on that day appellant was granted a continuance rescheduling trial for October 25, 1979 and pushing the rule 1100 rundate back to November 5, 1979. On October 25, 1979 the suppression hearing commenced. It lasted two days and presented complicated factual issues. The judge thus requested briefs and announced he would render his decision on November 7, 1979, twelve days later and two days after what had been the rule 1100 rundate. On November 7, 1979, the judge decided the suppression motion and sua sponte recused himself. That afternoon another judge also recused himself, but the following day, November 8, 1979, a judge was assigned to conduct trial, and the lower court heard and denied appellant's motion to dismiss under rule 1100. Trial would have begun immediately, but appellant waived his rule 1100 rights until February 7, 1980. He was found guilty after a non-jury trial on February 4 and 5, 1980. After denial of post-trial motions and imposition of sentence, this appeal followed.

Appellant contends that the lower court erred in denying his motion to dismiss under rule 1100 because the suppression judge's recusal precluded a finding that the suppression hearing marked the commencement of trial. We disagree. A hearing on a motion constitutes the commencement of trial for rule 1100 purposes if: (1) the accused is adequately warned on the record that the hearing has been reserved for the time of trial, and (2) the hearing actually leads directly to the guilt-determining process. Commonwealth v. Jackson, 262 Pa. Superior Ct. 151, 156, 396 A.2d 690, 692-93 (1978); Commonwealth v. Dozier, 258 Pa. Superior Ct. 367, 371-72, 392 A.2d 837, (1978). The court order fixing appellant's suppression hearing "for time of trial," and remaining in effect through the rescheduling of trial until October 25, 1979, provided adequate warning. Commonwealth v. Bastone, 266 Pa. Superior Ct. 328, 333, 404 A.2d 704, 706 (1978) quoting, Commonwealth v. Bowers, 250 Pa. Superior Ct. 77, 80, 378 A.2d 461, 462 (1977) (court order affords adequate warning). A hearing "lead[s] directly to the guilty-determining process," Commonwealth v. Jackson, supra, if actual trial "promptly" follows the hearing, Commonwealth v. Griffin, Pa. Superior Ct. , , 390 A.2d 758, 761 (1978); Commonwealth v. Wharton, 250 Pa. Superior Ct. 25, 28, 378 A.2d 434, (1977), and if the hearing triggers a "substantial commitment of the court's time and resources to a determination of the defendant's guilt," Commonwealth v. Griffin, supra; Commonwealth v. Taylor, Pa. Superior Ct. , , 385 A.2d 984, 986 (1978). See generally Commonwealth v. Lammonna, 473 Pa. 248, 260, 373 A.2d 1355, 1361 (1977) (EAGEN, J., concurring). In determining whether trial follows directly from the hearing, we not that time consumed by the lower court in deciding a pretrial motion is not automatically excludable under rule 1100(d), Commonwealth v. Simkins, Pa. Superior Ct. , A.2d (J. 593/1981, filed March 26, 1982) (petition for extension of time required); Commonwealth v. Schwarzberger, Pa. Superior Ct. , 428 A.2d 200 (1981) (same), and that unjustified delays after the suppression hearing may require dismissal, Commonwealth v. Griffin, supra (suppression hearing interrupted without explanation, 62 days of delay); Commonwealth v. Brown, 264 Pa. Superior Ct. 127, 399 A.2d 699 (1979) (suppression judge recused after deciding motion; delay of thirty days, 22 days beyond rundate, until next action in case); Commonwealth v. Haddad, Pa. Superior Ct. , 389 A.2d 658 (1978) (no decision after suppression hearing for 250 days, 153 days beyond rundate); Commonwealth v. Taylor, supra (no decision after suppression hearing for 173 days, 101 days beyond rundate); Commonwealth v. Bellamy, Pa. Superior Ct. , 385 A.2d 579 (1978) (suppression judge recused self after deciding motion, not replaced for 11 days, rule 1100 period continues to run while judge recused and during subsequent delay when Commonwealth made no effort to obtain custody of defendant).*fn1 Applying these principles we are satisfied that trial followed directly from appellant's suppression hearing. After a two-day hearing presenting complicated facts the suppression judge received briefs, reviewed them, and decided the motion within 12 days, only two days beyond the original rule 1100 rundate. When he recused himself, the lower court acted expeditiously to replace him within a day. But for appellant's waiver of his rule 1100 rights and request for a continuance, trial would have begun immediately. We are thus satisfied that the lower court committed substantial resources to the guilt-determining process upon the commencement of the suppression hearing and that trial followed directly therefrom. Accordingly, we affirm the lower court's holding that appellant was timely tried.

II.

Appellant contends also that the lower court erred in not suppressing the bank teller's in-court identification on the following facts: On December 6, 1978, the PNB bank at 16th and Market Streets in Philadelphia was robbed and the robber escaped.The teller viewed the robber face-to-face over the counter for about a minute in the brightly-lit bank. That afternoon she selected no one from an array of 250 photos shown her at the police station. Two weeks later she again failed to pick a suspect from an array of ten photos. Neither of these photo arrays was preserved. In February, 1979, at a counseled lineup of eight men, she passed over appellant and tentatively identified another man. In May, 1979, she first positively identified appellant as the robber at a preliminary hearing while he was standing alone with defense counsel before the court. A month before the suppression hearing, in September, 1979, she viewed for the first time photos taken during the robbery by automatic bank cameras. At the suppression hearing, she testified initially that she remembered appellant from the preliminary hearing, then later from the automatic camera pictures, and finally she said she remembered appellant from the robbery itself. The lower court suppressed the preliminary hearing identification, but allowed the teller's in-court identification to be admitted. At trial, the automatic camera pictures were also admitted. On this appeal, appellant challenges the admissibility of the teller's in-court identification.

Appellant argues first that the Commonwealth's failure to preserve the photo arrays, of 250 and ten photos, from which the witness could not identify him denied him due process rights to effectively test the credibility of the identifying witness at the suppression hearing and at trial. We need not address this contention, however, because appellant has failed to preserve it for our review. When requested to do so by the defense, and when the original confrontation between the witness and the suspect was not conducive to a "strong identification," the Commonwealth's failure to produce a pretrial photographic layout at a suppression hearing may so impair the defense's ability to attack the credibility of the witness's identification testimony as to require suppression of that testimony. Commonwealth v. Jackson, 227 Pa. Superior Ct. 1, , 323 A.2d 799, 804 (1974) (remand for hearing on independent basis). Accord, Commonwealth v. Lee, 262 Pa. Superior Ct. 280, 287, 396 A.2d 755, (1978) (dicta); Commonwealth v. Hodge, 246 Pa. Superior Ct. 71, 76, 369 A.2d 815, (1977) (independent basis sufficiently strong to admit testimony). See Commonwealth v. Fowler, 466 Pa. 198, 214, 352 A.2d 17, (1976) (even when witness identifies no one in photo arrays, the "repetitive display" of defendant may cause her to "retain in [her] memory the image of the photograph rather than of the person actually seen at the time of the crime.") quoting Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Appellant, however, failed to specifically request on the record that the photo displays be produced. Commonwealth v. Jackson, supra (requested); Simmons v. United States, supra (not requested thus no relief granted).*fn2 Accordingly, appellant waived his rights to have the photos produced, and he cannot now seek to suppress testimony on these grounds.

Appellant argues alternatively that the lower court erred in not suppressing the in-court identification because the pretrial identification procedures, taken together, were unduly suggestive. We disagree. "An identification is inadmissible when obtained by a procedure 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny an accused due process." Commonwealth v. Dill, 278 Pa. Superior Ct. 462, 470, 420 A.2d 633, (1980) quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, (1976). "It is the likelihood of misidentification which violates a defendant's right to due process," and the suggestiveness of pre-trial confrontations is but one of several factors to be considered in determining the admissibility of an in-court identification. Commonwealth v. Sexton, 485 Pa. 17, 22, 400 A.2d 1289, (1979). See Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919, 91 S.Ct. 173, L.Ed.2d (1970) Although the witness here was exposed to a suggestive preliminary hearing identification and had earlier failed to identify appellant in a lineup and in photo arrays, we conclude upon review of the entire record that the pretrial identification procedures were not so unnecessarily suggestive or conducive to irreparable misidentification as to impair appellant's due process rights. The witness had a reasonably good opportunity to view the robber face-to-face across the counter in the brightly-lit bank. See Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973) (opportunity to observe defendant during the criminal act important). Her viewing the automatic bank camera pictures, which were themselves admissible, was suggestive but not conductive to misidentification. Finally, she testified that she was identifying appellant in court from her memory of the robbery. The lower court as fact-finder was entitled to accept or reject this testimony. Accordingly, we affirm the admission of the teller's in-court identification testimony.*fn3

Judgment of sentence affirmed.


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