No. 6 Pettsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 7806419A.
John H. Corbett, Jr., Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Wieand, Johnson and Montemuro, JJ.
[ 301 Pa. Super. Page 14]
Glenn Lee Johnson was tried by jury and convicted of rape*fn1 and indecent assault.*fn2 Post-verdict motions were denied and Johnson was sentenced to imprisonment for a period of not less than five (5) nor more than ten (10) years. On direct appeal he argues (1) that pre-trial identification procedures were unduly suggestive and that the victim's identification testimony, therefore, should have been suppressed; and (2) that the trial court erred by refusing to permit impeachment of the complaining witness by evidence of an arrest for shoplifting. We find no merit in these arguments and, accordingly, affirm the judgment of sentence.
[ 301 Pa. Super. Page 15]
The charges against Johnson arose out of an incident which occurred on October 12, 1978, in a dormitory on the campus of the University of Pittsburgh. At approximately 3:30 P.M. on that day, Carmyn Taylor, a student, was assaulted while washing her hands in a woman's restroom. Her assailant grabbed her, pushed her against the wall, and removed her jeans and underwear. He fondled her breasts and engaged in sexual intercourse while she was pinned against the wall. The sexual act lasted approximately ten minutes during which the rapist compelled the victim to look into his face.
That same evening, Ms. Taylor was shown twenty photographs of persons who were known sexual offenders and who approximated the description which she had given to the police. Without any prompting she selected photographs of three persons whose appearances were similar to that of her assailant. On the following day, she was shown the same photographs and again selected the same three. Included in her selections was a photograph of appellant. On October 15, she observed her attacker while he was standing on a street corner several blocks from the dormitory. Thereafter, she selected appellant's photograph specifically and positively identified him as the person who had raped her.
"The central concern where any identification is offered is whether, under the totality of circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). A pretrial identification will not be set aside unless the facts demonstrate that the identification procedure 'was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968)." Commonwealth v. Linder, 284 Pa. Super. 327, 337, 425 A.2d 1126, 1131 (1981). "[S]uggestiveness . . . is only one factor to be considered in determining the admissibility of identification testimony. Suggestiveness alone does not warrant exclusion. Instead '[i]t is the likelihood of misidentification which violates a defendant's right to due process
[ 301 Pa. Super. Page 16]
. . . .'" Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979), quoting from Commonwealth v. Sexton, 485 Pa. 17, 22, 400 A.2d 1289, 1291 (1979). Factors to be considered in evaluating the likelihood of misidentification in a particular instance are:
Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154. See also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. ...