doubts about petitioner's identity as one of his robbers.
Waller is thus not helpful to petitioner. Nor for that matter is a recent Superior Court case, Commonwealth v. Thirkield, 311 Pa. Super. 413, 457 A.2d 954 (1983), to which he refers. There, following Waller, the court ruled that a prior inconsistent written statement could not be used as substantive evidence. Id. 457 A.2d at 956. Yet the court did not treat the question of the response to this statement. This is not surprising considering that the witness had no memory of having made it. Id.
3. Admissibility of Prior Statements
Petitioner also contests Magistrate Hall's reliance upon Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956), for the proposition that pre-trial statements are admissible as substantive evidence where the witness is available for cross-examination. Petitioner's Objections at 5 n.4. In that case, the Pennsylvania Supreme Court ruled that identifications of the defendant by several witnesses at a pre-trial line-up were admissible even though the witnesses were unable to identify the defendant positively at trial. Saunders, 125 A.2d at 445.
The Superior Court attempted to explicate Saunders in Commonwealth v. Floyd, 327 Pa. Super. 569, 476 A.2d 414 (1984), a case involving the substantive use of a witness's prior photographic identification of the defendant. According to Floyd, Saunders dealt with the admission of out-of-court statements as an exception to the hearsay rule. 476 A.2d at 418. In Floyd, the witness stated at trial that he had never identified the defendant before, and he was not questioned about the earlier photographic identification. Id. at 416. When the Commonwealth called a detective who testified about the prior identification, the witness's out-of-court identification was admitted as substantive evidence. Id. In reversing the defendant's conviction, the Superior Court enunciated a two-part test for the admission of such prior statements as an exception to the hearsay rule: 1) that the out-of-court identification was freshly made and 2) that the witness who made it takes the stand and acknowledges its accuracy. Id.
The Pennsylvania Supreme Court affirmed the Superior Court's decision, but carefully distinguished the Saunders situation. See Commonwealth v. Floyd, 508 Pa. 393, 498 A.2d 816 (1985). The court pointed out that Saunders, dealing as it did with the questioning of the witness himself about his prior identifications, was not applicable to the case before it, where one witness testified as to an identification made by another. 508 Pa. 393, slip op. at 6. The court stated that such testimony from a witness who had not made the prior identification could only be used in certain circumstances and, in accordance with Waller, for substantive purposes. Id. slip op. at 8.
Petitioner seems to suggest that, while Waller bans use of prior inconsistent statements, Saunders and its progeny allow use of prior statements consistent with the trial testimony and fulfilling the Superior Court's requirements in Floyd. Petitioner's Objections at 5 n.4. Given my reading of Waller, it does not seem necessary to reach the question whether Frakes' statements could be admissible as substantive evidence under the Saunders doctrine. However, I would note that Frakes' statement to the police seems to satisfy the Superior Court's criteria in that it was made soon after the crime and arguably its accuracy was acknowledged by the witness at trial. Transcript at 20-22.
In sum, while Pennsylvania law now forbids the use of prior inconsistent statements as substantive evidence,
responses to them may be used substantively. Accordingly, given Frakes' responses to and express acknowledgments of his prior statements, petitioner's contention that no substantive evidence existed to justify his conviction is groundless.
It remains then to apply to the instant case the standard for sufficiency of evidence stated in Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980): whether, "viewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there [was] sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Id. 416 A.2d at 495 (citations omitted). Because proof of the identity of the accused is an essential element, Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973), it is necessary to examine whether there was sufficient evidence to find that petitioner was one of the men who robbed Frakes.
Although proof of the identity of the accused must be established beyond a reasonable doubt, evidence of identification does not have to be "positive and certain." Hickman, 309 A.2d at 566. Vagueness or uncertainty in the identification testimony, of course, goes to the weight of the evidence. Id. (citations omitted). And to establish the identity of the accused circumstantial evidence may be sufficient. Id. (citations omitted). Thus, in Commonwealth v. Minnis, 312 Pa. Super. 53, 458 A.2d 231 (1983), the court upheld the trial court's determination that there was sufficient evidence identifying the defendant, evidence that included qualified eyewitness testimony and numerous points of circumstantial evidence. Id. 458 A.2d at 233-34.
Petitioner argues that vague or tentative identification testimony, standing alone without circumstantial evidence, will be insufficient to sustain a criminal conviction even if prior identifications of the defendant were not rendered inconsistent -- and thus not admissible -- by recantations at trial. Petitioner's Objections at 5. As support for this proposition petitioner relies primarily upon two Superior Court cases, Commonwealth v. Pereria, 219 Pa. Super. 104, 280 A.2d 623 (1972) and Commonwealth v. Grillasco, 272 Pa. Super. 365, 415 A.2d 1241 (1979). Id.
In Pereria, the court held that a victim's "vague, tenuous, and uncertain" in-court identification was not sufficient to identify the defendants beyond a reasonable doubt when, in testifying, the witness relied upon a photographic identification made two years prior to trial. 280 A.2d at 625. The court in Grillasco relied upon Pereria's holding in reversing a defendant's conviction in similar circumstances. 415 A.2d at 1243. There, witnesses could not positively identify the defendant at trial held over a year and a half after earlier photographic identifications. Id. at 1242.
These citations are not persuasive. First, these cases refer to prior photographic identifications occurring over a year before trial. In the instant case, Frakes' earlier statements involve more than a mugshot identification: they include both a prompt identification to police immediately after the crime and a sworn in-court identification of a man known to Frakes. Furthermore, both occurred within a year of trial.
Accordingly, in light of the substantive evidence presented at trial -- the response of Frakes to his earlier inconsistent statements -- I find that under the Smith standard, see supra, there was sufficient evidence to convict petitioner beyond a reasonable doubt.
It is, in any event, not the Smith standard which governs this habeas corpus court, but the standard enunciated in Jackson v. Virginia, supra : whether "a rational trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. at 324 (footnote omitted). As the Court in Jackson noted, a court "faced with a record of historical facts that supports conflicting inferences must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326.
Given my finding that Pennsylvania law permits the use of responses to prior inconsistent statements as substantive evidence, I hold that the Jackson standard has been met in the instant case. Reviewing the testimony of Frakes concerning his earlier statements, which testimony Judge Kremer determined to be credible, I am satisfied that a rational trier of fact could have found this evidence sufficient beyond a reasonable doubt to identify petitioner as one of Frakes' robbers. It follows that, in my view, a rational trier of fact could have found petitioner guilty beyond a reasonable doubt. Thus, I will adopt the Report and Recommendation of Magistrate Hall and deny petitioner's writ of habeas corpus.
An appropriate order follows.
After review of the Report and Recommendation of William F. Hall, Jr., United States Magistrate, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Petition for a Writ of Habeas Corpus is DENIED.
3. There is no probable cause for appeal.