filed: January 6, 1984.
COMMONWEALTH OF PENNSYLVANIA
ALLEN WAYNE WILLIAMS, APPELLANT
NO. 149 Pittsburgh, 1981, Appeal from the Order of December 29, 1980 in the Court of Common Pleas of Westmoreland County, Criminal Division, No. 264 C.T. 1980
David G. Petonic, Greensburg, for appellant.
Judith Karns Ciszek, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ.
[ 323 Pa. Super. Page 516]
This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Westmoreland County on December 29, 1980 following appellant's conviction in a jury trial of Criminal Attempt to Falsely Imprison.*fn1
The evidence adduced by the Commonwealth at trial established that on October 23, 1979 at approximately 7:45 a.m., Vonda Ortuglio drove her automobile into the parking lot of her place of employment, the Shop N Save supermarket located on Lowry Street in Jeannette. She locked her car and began walking toward the entrance of the store when she was accosted by a black male who, upon alighting from a passing vehicle, seized her shoulder and attempted to pull her into his automobile. Mrs. Ortuglio struggled with her assailant for a few minutes and then, having finally freed herself from his grasp, ran into the supermarket to safety. She then placed a telephone call to the State Police and reported the incident.
Investigating troopers arrived on the scene a short while later to interview the victim. Mrs. Ortuglio was asked to review eight photographs carried at the time by one of the troopers.*fn2 She was unable to identify any of the men contained in those pictures as her attacker. Later the same day, however, Mrs. Ortuglio was shown a second array
[ 323 Pa. Super. Page 517]
consisting of thirteen photographs. In this array appeared a photograph of appellant in which he wore a sign around his neck that bore the inscription "Police Dept. Jeannette, Pa.." Appellant's photograph was selected by Mrs. Ortuglio as depicting the man who set upon her in the Shop N Save parking lot that morning. Appellant was subsequently arrested and charged by complaint with criminal attempt.
On November 20, 1979, the District Attorney of Westmoreland County filed an information against appellant with the clerk of courts. The District Attorney's signature was not manually subscribed on the information. Instead, the information was "signed" with a rubber stamp facsimile signature which was then initialed by the First Assistant District Attorney of Westmoreland County, Henry A. Martin. Appellant filed an omnibus pretrial motion requesting (1) that the information be quashed (a) for jurisdictional deficiencies deriving from the failure of the District Attorney to sign the information in the manner required by Pa.R.Crim.P. 225(b) and 42 Pa.C.S.A. § 8931; and (b) because it fails to allege an essential element of the crime charged, viz., that the actions of the perpetrator were unlawful and/or committed against the will of the victim; and (2) that any identification of appellant by the victim, based upon a photograph of appellant taken by the Jeannette police in connection with their investigation of a crime for which appellant was eventually discharged, together with the photograph itself, be suppressed by reason of the photograph's suggestiveness. The lower court denied these motions but nevertheless ordered the Commonwealth to conceal the police department caption on appellant's photograph when it displayed the array to the jury during trial.
Appellant proceeded to a trial by jury on April 11, 1980 and on April 15, 1980 he was convicted of Criminal Attempt to Falsely Imprison. Post-verdict motions were filed, argued and denied by opinion and order dated December 3, 1980. On December 29, 1980, appellant appeared for sentencing
[ 323 Pa. Super. Page 518]
and was ordered to undergo confinement in a state correctional facility for a period of not less than eleven and one half months nor more than twenty-three months. This direct appeal, which presents several issues*fn3 for our disposition, then followed.
The question of whether a criminal information, which bears a rubber stamp facsimile signature of a district attorney together with the manually-inscribed initials of an assistant district attorney, has been properly "signed" within the meaning of Pa.R.Crim.P. 225(b)*fn4 and the Judicial Code*fn5 was definitely resolved by our Supreme Court in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). Therein, the Court ruled that
[ 323 Pa. Super. Page 519]
[and] the Judicial Code . . .*fn6 Id., 492 Pa. at 470, 424 A.2d at 1287.
However, the Contakos opinion makes clear that where a rubber stamp is employed to represent a district attorney's signature and an assistant district attorney initials the information near the stamped signature, the signature will be valid only if the requisite designation of authority for the assistant district attorney to so act has been filed with the clerk of courts pursuant to the mandate of 42 Pa.C.S.A. § 8931(i).*fn7 In the instant case, the Commonwealth apparently concedes that the proper designation of authority had not been filed at the time the information was stamped and initialed by the assistant district attorney. Appellant argues that because the designation of authority had not been filed prior to the filing of the information, but was instead filed only after the pretrial hearing which was conducted pursuant to appellant's motion to quash the information,*fn8 the information should now be quashed for alleged jurisdictional deficiencies and he discharged. We disagree.
The signature requirement of the Judicial Code, supra, is designed to assure the authenticity of an information and to guarantee that the district attorney has inquired fully into
[ 323 Pa. Super. Page 520]
all facts and circumstances attendant to a particular case and has made a reasoned evaluation of the propriety of initiating criminal proceedings against a defendant. Commonwealth v. Levenson, supra. See also Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). We fail to perceive how these goals would be furthered in the instant case by quashing the information and discharging appellant simply because the Commonwealth filed the required designation of authority in a tardy manner. The designation of authority was filed with the clerk of courts prior to the rendering of a decision by the lower court on appellant's motion to quash the information and well in advance of the commencement of trial. Consequently, we reject appellant's argument that the filing of the designation of authority in this fashion denied the public "an official showing of the proper exercise of discretion by the District Attorney on whether or not there was sufficient evidence of the commission of a crime for which to prosecute the Defendant."
Moreover, we regard as equally untenable appellant's assertion that the actions of the district attorney in the case at bar unlawfully erodes the accountability of prosecuting officials to the public by cloaking the identity of those persons responsible for the institution of criminal actions.*fn9 Under the holding of Commonwealth v. Emanuel, supra, it is now clear that so long as the name of the government official authorizing the prosecution appears on the face of the information, whether in the form of a manually-subscribed signature or rubber stamp facsimile
[ 323 Pa. Super. Page 521]
signature,*fn10 there arises a rebuttable presumption that the information is valid. Commonwealth v. Emanuel, 501 Pa. at 587, 462 A.2d at 656. The instantly-challenged information which bears the rubber stamp signature of the District Attorney of Westmoreland County as well as the initials of an assistant district attorney, thus complies fully with the signature requirements set forth in Rule 225(b) and Commonwealth v. Emanuel.
Appellant also assigns as trial error the failure of the lower court, to adequately explain to the jury that the maxim "falsus in uno, falsus in omnibus" may be applied only to "material" misstatements of fact*fn11 made by a
[ 323 Pa. Super. Page 522]
witness. Although it is true that the court in fact omitted the word "material" in presenting the maxim to the jury, we find no cause for reversal. First, as the quoted portion of the transcript makes clear, the trial judge admonished the jury that it, as the ultimate judge of credibility, was free to accept or reject all or any portion of a witness's testimony after assessing such testimony in light of the various factors cited previously by the court in its general charge on credibility which immediately preceded the instantly-challenged reference to the maxim. Moreover, the court emphasized that the maxim was only one of the many considerations that should enter into the jury's decision as to whether it should attach any credence to a certain portion of a witness's testimony. Taking the charge as a whole as we must, it is clear that if in fact the court's omission is this regard had any tendency to prejudice appellant's case, such prejudice was obviated by the remainder of the court's charge which was more than adequate on the question of the credibility of witnesses. Mount v. Bulifant, 438 Pa. 265, 265 A.2d 627 (1970).*fn12
[ 323 Pa. Super. Page 523]
Appellant's contention that the Commonwealth failed to plead and prove an essential element of the offense of false imprisonment, viz., that the victim was "unlawfully" restrained, is specious. First, an information will be regarded as sufficient in law so long as it serves to notify the accused of the charges filed against him or her.*fn13 The information in the case at bar provided as follows:
The District Attorney of Westmoreland County, by this Information charges that on and about Tuesday, October 23, 1979, in the said county, Allen Wayne Williams did in the parking lot of Shop N Save Supermarket, located on Lowry Avenue, City of Jeannette, Westmoreland County, Pennsylvania, with intent to commit the crime of false imprisonment did commit an act, to-wit: Vonda Ortuglio, 707 Baughman Avenue, Jeannette, Pa. 15644, he, ALLEN WAYNE WILLIAMS constituting a substantial risk toward the commission of a crime, to-wit: On the above said date, and at the above said location, he, ALLEN WAYNE WILLIAMS grabbed the said Vonda Ortuglio by the sweater and did attempt to pull her into a vehicle so as to interfere substantially with her liberty, the said Vonda Ortuglio did manage to pull herself away and ran into the store, all of which is against the peace and dignity and the General Assembly of the Commonwealth of Pennsylvania.
Albert M. Nichols
Attorney for the Commonwealth.
Violation of Section 901 of the Pennsylvania Crimes Code.
Clearly, then, the information afforded appellant with adequate notice of the charges brought against him. Moreover, the testimony of the victim at trial leaves no doubt that appellant's actions occurred against the will of Mrs. Ortuglio and without her consent.
Finally, appellant argues that the suppression court erred in failing to suppress a photograph of appellant as being
[ 323 Pa. Super. Page 524]
unduly suggestive,*fn14 and that the Commonwealth failed to meet its burden of proving that the identification procedure employed by the State Police was not unduly suggestive.
As previously stated, appellant challenged the legitimacy of the identification procedure in his amended omnibus pre-trial motion. Prior to the hearing conducted by the lower court pursuant to appellant's motion to suppress, the parties stipulated to the following facts: the offense occurred in Jeannette, Pennsylvania; after the incident occurred, the State Police presented for the victim's review an array of photographs which contained appellant's picture; the picture was taken after a prior arrest of appellant for his alleged commission of a crime for which he was ultimately discharged; the photograph depicted appellant wearing a sign around his neck on which were inscribed the words "Police Dept., Jeannette, Pa."; the victim identified this picture as that of her assailant; and, on the basis of such identification, a complaint and warrant for appellant's arrest were issued. The Commonwealth introduced no testimony whatsoever at the suppression hearing and entered into evidence only the display of photographs and the above-recited stipulation of facts.
It is certain that a pre-trial identification, where obtained by a procedure "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it denies the accused due process of law, will be held inadmissible at trial. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct.
[ 323 Pa. Super. Page 5251967]
, 1972, 18 L.Ed.2d 1199 (1967). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Both the Rules of Criminal Procedure*fn15 and established case law*fn16 impose upon the Commonwealth the duty of proving, in the face of a defendant's challenge to the propriety of an identification, that such identification was not accomplished through an unduly suggestive procedure. The accused is entitled to a pre-trial evidentiary hearing to determine the admissibility of the identification. Commonwealth v. Lee, supra; Commonwealth v. Jenkins, 232 Pa. Superior Ct. 523, 335 A.2d 463 (1974); and Commonwealth v. McMillion, 215 Pa. Superior Ct. 306, 265 A.2d 375 (1969). At the suppression hearing, if the court finds that the pre-trial identification procedure was tainted with suggestiveness, the Commonwealth is then required to prove by clear and convincing evidence that a witness's in-court identification of the accused, has an independent origin*fn17
[ 323 Pa. Super. Page 526]
sufficiently distinguishable from the illegal pre-trial identification so as to be purged of the primary taint. Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978); Commonwealth v. Thomas, 278 Pa. Superior Ct. 39, 419 A.2d 1344 (1980).
The Rules of Criminal Procedure require the suppression court, at the conclusion of the hearing, to
"enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant's rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought." Pa.R.Crim.P. 323(i).
In reviewing an order denying a defendant's motion to suppress, our function is to determine
"whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted."
Commonwealth v. W.P., 302 Pa. Superior Ct. 66, 69, 448 A.2d 97, 98-98 (1982), quoting Commonwealth v. Hunt, 280 Pa. Superior Ct. 205, 207-08, 421 A.2d 684-85 (1980).
The suppression court in the case at bar did not comply with the dictates of Pa.R.Crim.P. 323(i) in that it did not enter on the record at the conclusion of the hearing a statement of findings of fact and conclusions of law with regard to the alleged suggestiveness of the photographs from which the victim made a pre-trial identification of appellant. Moreover, we are puzzled by the suppression court's ruling on appellant's motion insofar as the remedy fashioned by the court was not responsive to the concerns voiced by defense counsel during the hearing that the photograph created a substantial possibility of misidentification.
[ 323 Pa. Super. Page 527]
The transcript of the hearing reveals that the court itself regarded the photograph as prejudicial and suggestive. However, instead of requiring the Commonwealth to establish by clear and convincing evidence that the victim's in-court identification of appellant enjoyed an independent basis that cleansed it of the suggestiveness engendered by the pre-trial photographic identification, see Commonwealth v. Glover, supra, the suppression court merely ordered that the police department designation on the photograph be excised for trial. The Commonwealth introduced no testimony whatsoever at the hearing;*fn18 the only evidence offered to the court was the photo array and the above stipulated facts which themselves offer little insight into the pre-trial identification procedure.
Despite the errors committed by the lower court in its disposition of the suppression issues raised by appellant, we perceive no reason to remand the case for another suppression hearing since the trial transcript affords us with abundant
[ 323 Pa. Super. Page 528]
evidence*fn19 from which to conclude that the victim's identification of appellant as her assailant enjoyed an independent basis sufficiently distinct from the suggestive pre-trial photographic identification so as to be purged of the original taint.
Testimony elicited from Vonda Ortuglio at trial established that, despite the relative brevity of the incident which gave rise to the instant prosecution, there was "absolutely no question" that appellant was the person who attacked her in the Shop N Save supermarket parking lot because she had endured unusual and unsettling encounters with appellant on two separate occasions earlier in that same month.*fn20 Mrs. Ortuglio explained that the first such incident occurred at approximately 6:15 a.m. on the first Saturday of October, 1979. Having just seen her husband off to work, Mrs. Ortuglio heard a rattling noise emanating from her front porch. Investigating further, she observed someone attempting to open her front door. Thinking that her husband had returned home, Mrs. Ortuglio prepared to open the front door and in doing so viewed appellant through the glass window of the door jiggling the doorknob from the outside. Mrs. Ortuglio testified: "[t]here was just the glass between us . . . I saw his face." She noted further that appellant was wearing a sweatshirt and dark-colored trousers and was carrying a flashlight. Frightened, Mrs. Ortuglio crawled across the livingroom floor to a telephone and alerted the police.
[ 323 Pa. Super. Page 529]
Vonda Ortuglio testified that her second encounter with appellant occurred approximately one week later while she was working at the meat counter at the supermarket. She stated that she was sweeping the floor behind the counter when she glanced upwards and observed appellant standing before her at the counter. Mrs. Ortuglio stated that she became frightened insofar as she "immediately recognized him" from the incident that took place at her home on the previous weekend morning. Mrs. Ortuglio, upon being asked by appellant if she recognized him, dropped her broom and retreated to a back room to telephone the police.
The above-discussed testimony affords an ample basis for holding that the victim's identification of appellant as her assailant was grounded upon an entirely independent set of circumstances. First, it is clear from the record that Vonda Ortuglio was unwavering in asserting that appellant was the person who attempted to pull her into an automobile in the parking lot of the Shop N Save Supermarket on October 23, 1979. Second, the basis for her unflinching identification is easily perceived: she had the opportunity to view his face and features on two prior occasions and, during the second incident which transpired at the supermarket meat counter, actually heard him speak to her in a manner which served to reinforce her conviction that appellant was the same individual who attempted to enter her house on a previous Saturday morning. Third, Mrs. Ortuglio supplied investigating state troopers with a description of appellant's height, weight and physical characteristics which corresponded in substantial part with appellant's actual description. Fourth, Mrs. Ortuglio never failed to identify appellant after the attack except when asked to review a photographic array which did not contain appellant's picture. Finally, relatively little time elapsed between her confrontation with appellant at the scene of the crime and her selection of appellant's picture from the second photo array.
Given the totality of the circumstances surrounding the instantly-challenged identification, we believe that its reliability
[ 323 Pa. Super. Page 530]
is impregnable and, consequently, reject appellant's assertion to the contrary.