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filed: October 5, 1984.


No. 3019 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1673-75: 1677-78 July Term, 1980


Leslie J. Carson, Jr., Philadelphia, for appellant.

Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Brosky and Beck, JJ. Beck, J., filed a concurring opinion.

Author: Brosky

[ 333 Pa. Super. Page 562]


Appellant, David Cooper, appeals from judgment of sentences of ten to twenty years imprisonment for robbery, five to ten years imprisonment for burglary, and ten years probation for criminal conspiracy, imposed by the Court of Common Pleas of Philadelphia upon a verdict of guilty entered after trial by jury.*fn1 Appellant raises several issues on appeal. Having found that appellant's sentence was improperly amended to require participation in a drug program as a condition of parole or probation, we vacate modification of judgment of sentence and reinstate the original sentence imposed by the trial court on November 9, 1981.*fn2 As to all other issues, we affirm the trial court.

Appellant's case has a rather long procedural history. On December 17, 1980, appellant was found guilty of Robbery, Recklessly Endangering Another Person, Possessing Instruments of a Crime, Burglary, and Theft by Unlawful Taking. On April 28, 1981, based on a finding that the jury

[ 333 Pa. Super. Page 563]

    could have reasonably inferred that the appellant had engaged in prior criminal activity because of excessive references to police photographs, the lower court granted appellant's post-verdict motion for a new trial.*fn3 Subsequently, on August 12, 1981, at new trial, appellant was again found guilty. On January 4, 1982, in absence of counsel, a hearing to reconsider sentence was held. On January 7, 1982, appellant's sentence was amended to include drug therapy as a condition of any parole or probation.

As established at trial, on April 6, 1979, at about 8 p.m., appellant and another man entered the home of Mr. and Mrs. Rufus Frazier.*fn4 The men threatened the Fraziers with a knife and took from them twenty-five dollars in cash, a television set, and a small radio. During the crime, while appellant's accomplice searched the second floor, the appellant remained downstairs with the Fraziers, holding the knife to Mr. Frazier's neck. The same evening, after looking through 500 to 800 photographs at the police station, Mrs. Frazier identified the appellant in one of the pictures. Subsequently, on May 2, 1980, appellant was arrested and thereafter identified by Mrs. Frazier at a lineup. Prior to the suppression hearing, however, all but 18 of the photographs were lost or misplaced.

[ 333 Pa. Super. Page 564]

Appellant first argues that the Commonwealth did not carry its burden of proving that the photographic identification procedure was not suggestive when it failed to produce several hundred photographs exhibited to the identification witnesses and produced only eighteen of those photographs for review. The appellant maintains, thus, that the case should be remanded for a new trial preceded by a hearing to determine whether the Commonwealth can show by clear and convincing evidence that any in-court or lineup identification following the photographic array had an origin wholly independent of the photographic identification. In support of his argument, appellant cites Commonwealth Page 564} v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974), and Commonwealth v. Hodge, 246 Pa. Super. 71, 369 A.2d 815 (1977). Appellant, however, in attempting to apply Jackson and Hodge to the instant case, fails to consider the difference in circumstances between Jackson and Hodge, and the instant case, and, thus, misinterprets their applicability.

In the instant case the Commonwealth made available for review 18 photographs from the original array (including that of the appellant) which were shown to the complainant. In contrast, in both Jackson and Hodge the Commonwealth produced none of the photographs viewed by the witnesses. Moreover, in the instant case, Detective Wojciechowski (the officer who presented the photographic array to Mrs. Frazier), testified that all of the photographs, including those which were missing, were standard police photographs of adult black males. Mrs. Frazier, too, testified, explaining that there were no other pictures of the appellant among the photographs that she looked through and, also, that she stopped looking at the photographs the instant she saw appellant's photo, and that she immediately recognized him without any doubt as being the man who had robbed her.

Appellant, however, in opposition to any argument which attempts to distinguish Jackson and Hodge from the instant case, maintains that the issue is not whether a sufficient number of photos were displayed, but whether the failure to produce a portion of the photos made it impossible for the court to determine whether those missing photos were suggestive.

Appellant apparently argues that the holdings in both Jackson and Hodge when no photographs were produced for review can be expanded to act as precedent in cases when a portion of the photographs are presented for review, though the circumstances differ. At the core of appellant's argument is the belief that when out-of-court photo identifications are made and a portion of the photographs used are unavailable for review, the out-of-court identification evidence and all subsequent in-court and line-up

[ 333 Pa. Super. Page 565]

    identification evidence must be suppressed. This court disagrees.

In neither Jackson nor Hodge does the court exclude a review of the circumstances in determining whether the failure to produce a portion of a photographic array requires the suppression of identification evidence. Rather, in Jackson, in explaining its holding that the Commonwealth's failure to produce the pretrial photographic layout at the suppression hearing violated the defendant's right to due process, the court emphasized:

". . . [T]he original confrontation between the witness and the appellant was not conducive to a strong identification. Mrs. Jackson testified that she saw the appellant for only one second immediately after having been awakened by a clamor in the hallway. While the confrontation was face to face, the only source of illumination in the darkened apartment came from light above and behind the appellant. She also testified that it was only probable that she could have identified the appellant had she not seen his picture." Jackson, supra 227 Pa. Super. at 11, 323 A.2d at 804.

Moreover, in Hodge, in granting suppression of testimony concerning the pretrial photographic identification, the court states:

"Such ruling was proper since the Commonwealth failed to retain the photographs which were utilized and this made it impossible under the circumstances to review the fairness of the procedures challenged." Hodge, supra, 246 Pa. Super. at 76, 369 A.2d at 817. (Emphasis added).

As cited, in both Jackson and Hodge the court makes its holding in light of the circumstances (with special emphasis on whether it would be impossible under the circumstances to review the fairness of the procedures challenged). Appellant, thus, incorrectly maintains that this ...

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