No. 351 January Term, 1979, Appeal from Order of Superior Court affirming Judgments of Sentence of Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 252 and 253 February Term, 1976
John W. Packel, Chief, Appeals Div., Asst. Public Defender, Leonard Sosnov, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Alan Sacks, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., filed a dissenting opinion in which Flaherty and Hutchinson, JJ., joined.
Appellant Harvey Silver was found guilty of rape, robbery, criminal conspiracy, and possession of instruments of crime*fn1 after a jury trial in the Philadelphia Court of Common Pleas. He was sentenced to two consecutive terms of two and one-half to five years on the rape and robbery convictions. On appeal the Superior Court affirmed the judgments of sentence.*fn2 This Court granted appellant's petition for allowance of appeal. For the reasons stated below we affirm the order of the Superior Court.*fn3
The record establishes that at approximately 12:00 p. m. on January 6, 1976, appellant's twin brother Howard entered a West Philadelphia employment agency and requested a job application. Mrs. Lila Fox, the operator of the agency, was interviewing Mrs. Loretta Collier when Howard entered. Shortly thereafter, appellant entered the office, spoke briefly with Howard, and left. Appellant later reentered the agency, showed Mrs. Fox a gun under his coat, and then ordered her into the rear office where, after being forced to undress, she was blindfolded, bound, gagged, and raped twice. Mrs. Collier was robbed, and company checks and other items were stolen. Appellant and his brother were arrested in their West Philadelphia apartment at approximately 9:00 p. m. that evening.
The first issue raised in the instant appeal concerns the in-court identification of appellant made by the robbery victim, Mrs. Collier. Shortly after the arrest, the police placed appellant and his brother in a line-up of seven black males of similar age, height, weight, and complexion. Appellant was first and his brother sixth in line. Mrs. Fox, the rape victim, selected both brothers from the line-up; Mrs. Collier, however, identified only Howard. Mrs. Fox repeated her identifications at a preliminary hearing, at which Mrs. Collier again identified only appellant's brother. After a suppression hearing, the trial court ruled that the procedures employed at both the line-up and the preliminary hearing were impermissibly suggestive, and suppressed the identifications resulting therefrom.*fn4 The court went on to determine that there were independent bases for in-court identifications of both brothers by Mrs. Fox and of appellant's brother by Mrs. Collier. The court declined to rule on the admissibility of a possible in-court identification of appellant by Mrs. Collier. At trial Mrs. Collier identified both brothers.*fn5
Appellant's argument relies on a strained interpretation of Pa.R.Crim.P. 323. He contends first that the trial court violated Pa.R.Crim.P. 323(h)*fn6 by permitting Mrs. Collier's
in-court identification because the Commonwealth had not requested a ruling by the suppression court on the admissibility of such an identification, thus impliedly representing that the Commonwealth would not attempt to elicit an in-court identification of appellant by Mrs. Collier at trial. Appellant's second argument, also relying on Pa.R.Crim.P. 323(h), is that the admission of Mrs. Collier's identification was error because the Commonwealth failed to demonstrate by clear and convincing evidence at the suppression hearing that there would be an independent basis for that identification at trial. These claims are without merit.
There was no occasion for a pre-trial determination of the admissibility of Mrs. Collier's identification of appellant. Pa.R.Crim.P. 323 provides a single procedure for seeking the suppression of evidence alleged to have been obtained in violation of a defendant's rights. Because Mrs. Collier had not identified appellant prior to the suppression hearing, there was no evidence appellant could have moved to suppress, nor any for which an independent basis could have been shown. Thus, under Pa.R.Crim.P. 323, the suppression court properly declined to rule on the admissibility of a possible identification of appellant by Mrs. Collier at trial. Similarly, the Commonwealth was not required at the time of the hearing to establish an independent basis for such an identification. The fact that it did not do so, therefore, cannot be said to amount to an implied representation as to Mrs. Collier's testimony at trial. Cf. Commonwealth v. Heacock, 467 Pa. 214, 355 A.2d 828 (1976).
Compliance with Pa.R.Crim.P. 323 does not, of course, foreclose the possibility of a violation of due process not explicitly contemplated by that rule. Mrs. Collier was exposed to two identification procedures ruled impermissibly suggestive by the suppression court. It is the potential for misidentification such procedures may engender which offends due process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Sexton, 485 Pa. 17,
A.2d 1289 (1979). It is possible that suggestive pre-trial procedures which do not produce an immediate identification of the suspect may be so suggestive as to taint an eventual identification. See e.g. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976) (plurality opinion). The instant record, however, does not present such a situation.
Reliability is the linchpin in determining the admissibility of an identification such as the one challenged herein. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). The controlling test of such reliability was announced by the United States Supreme Court in Neil v. Biggers, supra. As the Manson Court explained:
The factors to be considered are set out in Biggers. 409 U.S. at 199-200 [, 93 S.Ct. at 382-383]. These include the opportunity to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. ...