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COMMONWEALTH PENNSYLVANIA v. BYRON SHEPPARD (04/04/85)

filed: April 4, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
BYRON SHEPPARD



No. 189 Philadelphia, 1982, Appeal from the Suppression Order of January 6, 1982 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 81-05-1327-1331

COUNSEL

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Jeff Shender, Assistant Public Defender, Philadelphia, for appellee.

Cirillo, Johnson and Cercone, JJ.

Author: Cercone

[ 341 Pa. Super. Page 405]

This is an appeal by the Commonwealth*fn1 from the order of the court below suppressing: (1) an out-of-court photographic identification of appellee, Byron Sheppard; (2) physical evidence seized incident to appellee's arrest; and (3) appellee's inculpatory post-arrest statement. With the exception of the lower court's order pertaining to the photographic identification, we reverse.

The relevant events giving rise to this appeal are as follows. On February 14, 1981, at approximately 5:45 p.m., two businessmen, Jerome Metz and Mark Hirschman, were assaulted and robbed while they were attempting to deposit approximately $10,000.00 in cash and checks at the Industrial Valley Bank on Chestnut Street in Philadelphia. That evening Mr. Metz examined police "mug books," but he could not positively identify any of the perpetrators. On March 9, 1981, Mr. Metz was shown an additional array of photographs and positively identified Sheppard as one of the felons. Based on this identification an arrest warrant was obtained for Sheppard. The warrant was executed on March 21, 1981, when Sheppard was discovered to be in custody under an assumed name on another charge. A pair of glasses was seized incident to Sheppard's arrest as they were similar to the description of those worn by one of the

[ 341 Pa. Super. Page 406]

    perpetrators. After his arrest, Sheppard waived his Miranda rights and gave a knowing, intelligent and voluntary statement acknowledging his involvement in the robbery and identifying Adrian Miles as one of his co-conspirators.*fn2 This information led to Miles' arrest and a statement by him.

Sheppard, who was charged with robbery and related offenses, filed a motion to suppress out-of-court and in-court identification testimony, the glasses, and his statement. Following a consolidated suppression hearing for Sheppard and Miles,*fn3 the lower court found as a fact that the Commonwealth had failed to preserve the photographic array from which Mr. Metz had identified Sheppard on March 9, 1981. Based on our decision in Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974), the suppression court held that the failure to preserve the exact array rendered the out-of-court identification testimony inadmissible. The court did find, however, that an independent basis existed for Mr. Metz to make an in-court identification of Sheppard.

Notwithstanding the finding of an independent basis for an in-court identification, the suppression court held that the out-of-court identification, which had to be suppressed under Jackson, illegally tainted every event that followed. In other words, the court found that the out-of-court identification was the linchpin without which there was not probable cause for Sheppard's arrest. The court then reasoned that Sheppard's arrest and statement which led to Miles' arrest and statement were "the fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Consequently, the court granted Sheppard's motion to suppress the out-of-court photographic identification, the glasses seized incident to his arrest,

[ 341 Pa. Super. Page 407]

    and his statement. In addition, Miles' statement was also suppressed. ...


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