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COMMONWEALTH PENNSYLVANIA v. ALBERT BROWN (06/30/86)

decided: June 30, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ALBERT BROWN, A/K/A ALBERT CLEMONS, A/K/A ELBENS BROWN, APPELLANT



Appeal from the Order entered by the Superior Court of Pennsylvania at No. 133 Pittsburgh, 1983, on November 9, 1984, affirming the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at Nos. CC8203462A and CC8203443A, on January 5, 1983. Pa. Super. , 487 A.2d 437 (1984).

COUNSEL

John H. Corbett, Jr., Paulette J. Balogh, Office of the Public Defender, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion. Larsen, J., concurs in the result. Flaherty, J., files a dissenting opinion in which Nix, C.j., and Zappala, J., join.

Author: Mcdermott

[ 511 Pa. Page 156]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

This is an appeal from an order of the Superior Court which affirmed Judgments of Sentence of the Court of Common Pleas of Allegheny County.

[ 511 Pa. Page 157]

Appellant was convicted of two (2) counts of armed robbery in connection with the robberies of a gas station and fast food restaurant. Appellant was sentenced to consecutive terms of ten (10) to twenty (20) years for each count of robbery. Post trial motions were denied and appellant's conviction was subsequently affirmed by the Superior Court, 337 Pa. Super. 627, 487 A.2d 437. This Court granted allocatur to specifically address appellant's contention that the identification procedures utilized by the Commonwealth were prejudicial to the point of warranting a new trial. We disagree and therefore affirm based on the reasons set out below.

The robberies in question were committed on the night of March 4, 1982, within approximately one and one-half (1 1/2) hours of one another. The trial court found that the respective victims, numbering three (3) altogether, had ample time in a well-lit area to view the perpetrator's face. The clerk-victims described the offender as being a black male, approximately five foot, ten inches (5'10") tall, wearing a black leather coat, having a "Fu Man Chu" mustache, having a unique hairstyle (a "gerry curl") and having a dark complexion. On the basis of these descriptions, the police conducted an investigation and composed two (2) separate photo arrays, consisting of ten (10) and eleven (11) photos respectively. The arrays were shown to the victims several days after the robberies and all three (3) witnesses selected a photograph depicting appellant as the perpetrator of the robberies.

At trial, over defense counsel's objections, the Commonwealth displayed one of the photo arrays consisting of ten (10) photographs to the jury. The pictures, which included appellant, showed front and side views of each man. Cardboard folder frames were placed around each photo to obscure the police identification numbers hanging from each man's neck, but the chains upon which the identification placards hung still remained visible. The second photo array was not shown to the jury, although testimonial

[ 511 Pa. Page 158]

    references were made to it. Neither array went out with the jury during deliberations.

The following two (2) issues are before the Court on this appeal: (1) whether the photo arrays used by police led to a tainted subsequent in-court identification; and (2) whether appellant was prejudiced and denied a fair trial by the jury viewing the photo array used in the police identification leading to appellant's identification.

Appellant contends that the photo arrays utilized by the police were of such a suggestive nature that they created a substantial likelihood of misidentification. Furthermore, appellant maintains that the trial court erred in allowing the jury to see the one photo array because the quality of the photos was that of a "mugshot", permitting the jury to infer that appellant had a prior criminal history. The Commonwealth counters that the identification process utilized by the police was proper and permissible since the photographs employed in the array bore a substantial similarity to the appellant; the witnesses had an opportunity to view appellant for a substantial amount of time under adequate lighting conditions; and finally, the photographs were not prejudicial merely because they depicted appellant in front and side profiles.

The trial court found that the photographic array was "assembled in a manner to present the viewer with an objective selection of similar choices." It also stated that there was no evidence that the photographs were presented by the authorities to the witnesses in an improper fashion. As to appellant's allegation of error concerning the jury's viewing of the photographs, the trial court held that there was no error in the jury viewing photographs from which witnesses selected an individual as the perpetrator of a crime where the array was entirely devoid of any reference to a prior criminal record.

The Superior Court, addressing only the issue of the jury's viewing of the photographs ("mugshots"), found the absence of any prejudicial reference to the photographs

[ 511 Pa. Page 159]

    blunted the impact of the jury's view of them, and thus affirmed the trial court's judgment of sentence.

Appellant's first contention, concerning the prejudicial nature of the identification process employed by the police, is without merit. The United States Supreme Court has established the standard by which to measure the objectiveness of an identification procedure.

[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Where, as here, the photographs employed in an array possess substantial similarities, the array is not impermissibly suggestive. Any testimony regarding out-of-court identifications or in-court identifications by witnesses who viewed the array will likewise be properly admitted into evidence. See Commonwealth v. Wheeler, 498 Pa. 374, 446 A.2d 892 (1982).

The two arrays at issue in the instant appeal were composed of photographs of ten and eleven men including appellant, all of whom were of the same race, possessed the same basic physical make-up, with several bearing a striking resemblance to appellant himself. Based on our previous holdings, the identification procedure utilized by the police here led to a constitutionally sufficient verification of ...


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