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COMMONWEALTH PENNSYLVANIA v. JOHN FERGUSON (01/11/84)

submitted: January 11, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOHN FERGUSON



No. 1799 Phl 1982, Appeal from the Suppression Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 81-03-1425-1430.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Elaine G. DeMasse, Assistant Public Defender, Philadelphia, for appellee.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Hoffman

[ 327 Pa. Super. Page 308]

The Commonwealth appeals from a lower court order suppressing all identification evidence.*fn1 Because we find two of the Commonwealth's three claims to have merit, we reverse in part and affirm in part.

In the early morning hours of December 25, 1980, in Philadelphia, two men robbed taxicab driver William Pereau at gunpoint. Immediately after the robbery, Pereau contacted police who showed him approximately 100 slides of persons matching Pereau's description of his assailants. However, appellee's picture was not among these slides and Pereau made no identification. Nine days later, Pereau notified police after discovering appellee's picture on the front page of a local newspaper in connection with a story about appellee's arrest for the robbery-homicide of another cabdriver. On January 12, 1981, Detective Frank Russell of the Philadelphia Police Department visited Pereau and showed him a photographic array which included a picture of appellee. Without hesitation, Pereau unequivocally identified appellee's picture as one of the men who had robbed him. Accordingly, appellee was arrested on January 14, 1981, and charged with a variety of offenses stemming from the Pereau robbery.*fn2 On March 4, 1981, an in-person lineup was held at the Philadelphia Detention Center. At this lineup, Pereau did not recognize appellee as one of his assailants and, consequently, made no identification. Nevertheless, at a preliminary hearing the next day, Pereau positively identified appellee, and appellee was bound over for arraignment. Following appellee's two waivers of his rights under Pa.R.Crim.P. 1100, defense counsel filed a motion to suppress all identification evidence on the ground

[ 327 Pa. Super. Page 309]

    that, inter alia, the March 5, 1981 preliminary hearing identification procedure was unnecessarily suggestive. However, before a hearing could be held on this motion, defense counsel received the following letter from Assistant District Attorney Elliot Present:

Dear Ms. Chiarello: Pursuant to the Rules of Discovery, this letter is to advise you that on March 25, 1982, in the course of my preparation of the victim in the above-captioned case, he was told he would again be shown the photos at the Suppression hearing. The same photos which were shown by Detective Russell were handed to the witness. He then looked through the photos and picked out the defendant. There was no suggestion made to him as to which photo to select.

Very truly yours,

Elliot Present

(N.T. May 18, 1982 at 95). Consequently, defense counsel filed an amended suppression motion alleging, inter alia, that appellee's right to counsel had been violated on March 25, 1982 when, in the absence of defense counsel, Present showed Pereau the array of photographs, and Pereau identified appellee's picture. A suppression hearing was held on May 18, 1982, at which time Pereau again identified appellee as one of his assailants. However, at the conclusion of the hearing, the lower court found that appellee's right to counsel had been violated at the March 25, 1982 private meeting between Pereau and Assistant District Attorney Present. Therefore, the lower court felt justified in suppressing Pereau's four identifications of appellee, including: (1) the uncounselled photographic identification on March 25, 1982; (2) the pre-arrest photographic identification on ...


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