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COMMONWEALTH PENNSYLVANIA v. JOSEPH B. SAMPLE (07/26/83)

submitted: July 26, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH B. SAMPLE, APPELLANT



No. 367 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, February Term, 1975, Nos. 389-392.

COUNSEL

David Lionel Pollack, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, Beck and Montemuro, JJ.

Author: Rowley

[ 321 Pa. Super. Page 460]

This is a direct appeal from judgments of sentence imposing fifteen to thirty years imprisonment, following a trial by jury wherein appellant was convicted of voluntary manslaughter, robbery, and possession of an instrument of crime. On appeal, appellant challenges the admissibility of an extra-judicial, pre-arrest identification and a subsequent in-court identification. Appellant further claims that the

[ 321 Pa. Super. Page 461]

    verdict was contrary to the weight and sufficiency of the evidence.

This is the second time appellant's case has been before our Court. At a prior jury trial, appellant was found guilty of second degree murder, robbery, criminal conspiracy and three weapons offenses. On appeal, this Court determined that (1) the evidence was insufficient to support the convictions on two weapons violations and (2) trial counsel was ineffective for failing to preserve for appellate review claims of prosecutorial misconduct that constituted reversible error. Thus, the judgments of sentence were reversed and a new trial was granted. Commonwealth v. Sample, 270 Pa. Super. 47, 410 A.2d 889 (1979).*fn1 The facts underlying the charges are set forth in the Court's previous opinion, Id., 270 Pa. Superior Ct. at 50-51, 410 A.2d at 891, and need not be repeated here.

Appellant's principal contention on appeal is that the pre-arrest, in-hospital identification process, by which the victim's wife identified him as the gunman, was unduly suggestive and unnecessary and, thus, violative of his constitutional due process rights. He claims that the suppression hearing judge, prior to the first trial, erred in refusing to suppress evidence of the in-hospital identification and, consequently, he was prejudiced by the introduction of that identification evidence at his second trial. Appellant's argument is without merit. The suppression court correctly concluded that the pre-arrest identification procedure in this case was not constitutionally defective.

In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Commonwealth v. Sutton, 496 Pa. 91, 436 A.2d 167 (1981). Suggestiveness in the identification process is a

[ 321 Pa. Super. Page 462]

    factor to be considered in determining the admissibility of such evidence, but "[s]uggestiveness alone does not warrant exclusion." Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979); Commonwealth v. Johnson, 301 Pa. Super. 13, 15, 446 A.2d 1311, 1312 (1982). A pre-trial identification will not be suppressed as violative of due process rights unless the facts demonstrate that the identification procedure was so infected by suggestiveness "as to give rise to a substantial likelihood of irreparable misidentification." Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968); Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974); Commonwealth v. Linder, 284 Pa. Super. 327, 337, 425 A.2d 1126, ...


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