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COMMONWEALTH PENNSYLVANIA v. FREDERICK SANDERS (08/08/88)

submitted: August 8, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
FREDERICK SANDERS, APPELLANT



Appeal from the Judgment of Sentence Entered January 29, 1987, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 86-01-2624 & 2626.

COUNSEL

MaryAnn F. Swift, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Del Sole and Hester, JJ.

Author: Hester

[ 380 Pa. Super. Page 83]

Frederick Sanders appeals from the judgment of sentence entered January 29, 1987, in the Court of Common Pleas of Philadelphia County, following his conviction by a jury of robbery and conspiracy. He was sentenced to an aggregate term of imprisonment of five to ten years. Appellant raises

[ 380 Pa. Super. Page 84]

    numerous assertions of error on appeal. Finding no merit to them, we affirm.

At approximately 1:30 a.m. on October 14, 1985, Noah Afuwape, a cab driver for the Yellow Cab Company in Philadelphia, was driving a cab on Woodland Avenue when two young males, appellant and a companion, flagged him down. Afuwape stopped the cab and the two men opened the back doors and sat in the back seat. Mr. Afuwape looked at the men as they entered the cab and kept the interior light on so he could see them during the drive. They asked to be driven to the 8600 block of Lindbergh Boulevard. During the course of the ten minute ride, he periodically observed appellant, who was seated on the passenger's side, through the rear-view mirror.

Arriving at the requested destination, appellant told Afuwape to stop, and appellant's companion put a sharp object to Afuwape's throat. Appellant exited the vehicle, opened the front door on the passenger's side, and sat next to Afuwape. Appellant asked him if he was carrying a weapon. Afuwape answered in the negative. Appellant then reached into Afuwape's pocket and removed a wallet and over $100.00 in cash. Appellant told him that he would not be harmed if he cooperated. Appellant kept the cash and returned the wallet. He then instructed Afuwape to get out of the cab, and Afuwape complied. With appellant at the wheel, the cab drove off. Afuwape immediately reported the incident to the police. The next day, the cab was discovered abandoned in Ohio. Appellant and his companion were subsequently arrested.

Appellant first argues that the trial court erred in denying his motion to dismiss under Rule 1100. This argument is without merit.

Pa.R.Crim.P. 1100(c)(3)(ii) provides: "In determining the period for commencement of trial, there shall be excluded therefrom . . . such period of delay at any stage of the proceedings as results from . . . any continuance granted at the request of the defendant or his attorney."

[ 380 Pa. Super. Page 85]

[W]here a continuance requested by the defendant is granted, the trial shall be rescheduled for the earliest date or period consistent with the continuance request and the court's business, and the entire period of such continuance may then be excluded . . . .

Pa.R.Crim.P. 1100, comment. See also Commonwealth v. Kuhn, 327 Pa. Super. 72, 475 A.2d 103 (1984).

Instantly, the criminal complaint was filed October 18, 1985. Therefore, the run-date under Rule 1100 would have been April 16, 1986. However, at a pre-trial hearing on February 25, 1986, a representative of the Defenders Association indicated that an attorney would not be available to represent appellant until May 5, 1986. The court scheduled trial for the earliest possible date after that, May 29, 1986. See Notes of Testimony, (N.T.), 5/29/86, at 8. The trial court's opinion notes that the continuance was granted without objection. Trial court opinion at 4. We agree with the trial court that there was no violation of Rule 1100 as the delay was attributable to the defense continuance.*fn1

Appellant next argues that the trial court improperly denied his motion to suppress identification, statements, and physical evidence. He argues that at the time of his arrest, the police had neither reasonable suspicion to stop him nor probable cause to arrest him, thus poisoning the evidence obtained as a result of the arrest. In addition, he asserts that the identification procedures were tainted by a suggestive confrontation and an illegal post-arrest photograph identification procedure. We find no merit to these assertions.

With respect to whether appellant's arrest was effected with probable cause, we note the following. On October 15,

[ 380 Pa. Super. Page 861985]

, Ohio State Trooper Scott Tanner, patrolling the Ohio Turnpike, received a radio call from a toll booth collector near the Indiana-Ohio state line. The collector advised the trooper that a taxi cab had approached the toll booth but the driver had no money to pay the toll. The toll collector instructed the driver to pull to the side of the road,*fn2 but instead, the driver made a U-turn and headed back the way he had come. Trooper Tanner proceeded toward the toll booth. While on his way, he received another call from the toll collector advising him that the taxi cab had been observed heading back toward the toll booth but that it had stopped beneath an overpass near the booth. The toll collector reported that he observed two young, black males exit the cab and walk up a hill onto an overpass.

Trooper Tanner arrived at the site of the parked cab and noted that it bore a Pennsylvania license plate. He observed that the radio and two speakers were missing; they appeared to have been removed by force. Tanner checked the license number and the vehicle identification number (VIN) through the National Crime Information Center (NCIC), but discovered nothing to indicate that it was a stolen vehicle. While Tanner was checking the cab, a farmer on the overpass called down to him and asked if he was looking for two young, black males. The trooper answered in the affirmative, and the farmer advised him that they were walking northbound on County Road. The trooper testified that the circumstances surrounding his discovery of the cab aroused his suspicion. "A person that makes their living driving a taxi cab that would be traveling across country or through other states on a toll road I'm sure would plan ahead far enough to carry some money for tolls." N.T., 5/29/86, at 58. He also stated that he thought it odd that a Pennsylvania cab was heading west and was nearly at the Ohio-Indiana border.

[ 380 Pa. Super. Page 87]

The trooper proceeded in the direction the farmer had reported seeing the young men. He noticed two young, black males coming from a gas station. They matched the descriptions given to him by the toll booth collector. He pulled up to them and inquired if they had abandoned a taxi cab. They answered in the affirmative. The trooper testified, "Neither of the fellows appeared to be old enough to drive a taxi cab." N.T., 5/29/86, at 63-64. The youths told him they had run out of gas and had come into town to cash a check, and that they were on their way back to the cab. The trooper offered them a ride back to the cab. They did not offer resistance. Consistent with the Ohio Highway Patrol policy for anyone who is to be transported in a patrol car, the trooper patted down the young men. Once in the police car, neither would admit to being the driver of the cab. The trooper testified, "I asked both of them . . . if they were a taxi cab driver as a profession, and they said no, neither one worked for the taxi cab company." Id. at 66. At this, the trooper decided to ascertain whether the cab was stolen. He drove to the toll booth and called a Yellow Cab Company telephone number he had copied from the back of the cab. A cab company dispatcher informed him that the cab had been stolen in an armed robbery. The trooper informed the young men what he had learned and read them their Miranda rights.

We find that the tropper's actions were not repugnant to fourth amendment guarantees. The United States Supreme Court has set forth the following standards for the temporary seizure of persons.

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here . . . . Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889 (1968). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be engaged in criminal activity . . . Terry v. Ohio, supra, 392 U.S., at 16-19, 88 S.Ct. at 1877-1879.

[ 380 Pa. Super. Page 88]

[T]he totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particularized person stopped of criminal activity . . . .

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances.

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior, jurors as factfinders are permitted to do the same -- and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the Court in Terry v. Ohio, supra, said that, "[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence." Id. 392 U.S. at 21, n. 18, 88 S.Ct., at 1880, n. 18 (emphasis added).

United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). Moreover, the court has also held that a Terry stop is permissible to investigate completed criminal activity.

[W]here police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification

[ 380 Pa. Super. Page 89]

    in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large. Particularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes.

United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985).

Instantly, the trooper's actions were commensurate with the level of suspicion aroused by the circumstances. At first, he merely offered the young men a ride back to the cab they admitted having abandoned. During the course of the ride, neither passenger admitted to being the cab's driver and they stated that neither was a cab driver by profession. As a result of these responses, the trooper's suspicions were sufficiently aroused to ascertain if the cab was stolen.

It is not clear at what point prior to the arrest the trooper's actions amounted to a custodial stop. Surely, such a stop was reasonable by the time the young men told the trooper that they did not work for a cab company. This is especially true in light of the fact that they did not look old enough to drive a cab; the cab was from Pennsylvania but was headed west in Ohio and had nearly crossed into Indiana; and apparently neither young man had sufficient funds to pay the toll. The cumulative effect of these factors was sufficient to arouse a suspicion in a prudent law enforcement officer that the cab was stolen. This suspicion proved correct. We find that any custodial stop which occurred was not violative of constitutional guarantees. Moreover, it scarcely seems necessary to cite cases to

[ 380 Pa. Super. Page 90]

    uphold the validity of the arrest which occurred after the trooper was advised that the cab was indeed stolen in the course of an armed robbery. Accordingly, this argument is meritless.

Appellant also maintains that the photograph identification was unduly suggestive. He argues that the complainant was shown a photograph display of nine photographs, including one of appellant, but that the photograph of appellant pictured him without a shirt, whereas all the other photographs except one pictured their subjects wearing shirts. Moreover, the photograph of appellant was of a "different gloss" than the others, and the two shirtless subjects were the darkest males in the group.

This assertion is meritless. Appellant has not included in the record the photographs from the array, thus precluding us from making an independent determination as to their suggestiveness. Nonetheless, we note that the complaining witness was shown nine photographs and asked if any of the subjects portrayed one of the males involved in the robbery. N.T., 5/29/86, at 112-13. He was not given any information about the individuals in the photographs. Id. at 113, 157.

Furthermore, even if the photographs were in some sense suggestive, we find that there was an independent basis for the complaining witness' in-court identification. Our supreme court, in Commonwealth v. McGaghey, 510 Pa. 225, 228-29, 507 A.2d 357, 359 (1986), wrote:

The problem with an impermissible suggestive identification is the potential for misidentification, resulting in a due process violation if that identification is admitted at trial. Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). Suggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained. Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976) (Plurality Opinion). To do so, the Commonwealth must establish that the in-court identification resulted from the criminal act and not the suggestive encounter. Fowler, supra.

[ 380 Pa. Super. Page 91]

Most recently in Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985), we reiterated the necessary factors in determining whether a victim had an independent basis for an in-court identification:

506 Pa. at 534, 486 A.2d at 380. In James, we determined that a subsequent in-court identification was not tainted by the suggestiveness of the preliminary hearing identification, because the victim observed her assailant for five to ten minutes during the assault, accurately described her assailant to the police within forty-five minutes of the altercation, and identified her assailant from a photographic array six weeks after the assault. Thus, we concluded that the ". . . victim did indeed crystalize her identification of Appellant during the assault . . . ." 506 Pa. at 533, 486 A.2d at 380.

Instantly, the complaining witness testified that he observed appellant at the time of the criminal incident. N.T., 6/2/86, at 8, 10. He further testified that neither appellant nor his companion wore any covering over their faces. Id. at 11. When asked if either wore a hat or glasses or anything else, he answered, "absolutely no." Id. The complaining witness stated that he looked at appellant, who was seated on the passenger's side, during the ten minute cab ride. Id. at 10. Appellant told the complaining witness to stop the cab and then he moved to the front seat next to him. The complaining witness again looked at appellant. Id. at 15. The complaining witness further described how appellant was dressed, Id., at 18, and the style of the hair cut he wore. Id. at 19, 29. He further testified:

[ 380 Pa. Super. Page 92]

Q. Mr. Afuwape, when you went to the lineup . . . did you pick out anybody in the lineup?

A. Yes.

Q. Who did you pick out?

A. The defendant.

Q. Mr. Afuwape, is there any doubt in your mind that it was this defendant Frederick Sanders who drove your cab away on October 14, 1985?

A. There's no doubt. He is.

Id. at 54.

Moreover, the complaining witness immediately reported the incident to the police. A few days later, the complaining witness gave a detective a detailed description of appellant. Id. at 30-31. At the preliminary hearing, the witness positively identified appellant as one of the two men who robbed him. N.T., 1/21/86, at 5-8.

We conclude that even if the photo identification was in some sense suggestive, the victim did, indeed, crystalize his identification of appellant during the criminal incident. There is clear and convincing evidence that the in-court identification resulted from the victim's observations during the cab ride, and not from a suggestive photo array. Consequently, appellant is not entitled to relief on the basis of this argument.

Appellant also argues that his constitutional rights were violated due to the fact that he was not represented by counsel at the photo identification. This argument lacks merit.

A suspect has the right to be represented by counsel at a photograph array. Commonwealth v. Whiting, 439 Pa. 198, 266 A.2d 738 (1970); Commonwealth v. Ferguson, 327 Pa. Super. 305, 475 A.2d 810 (1984). In Commonwealth v. McKnight, 311 Pa. Super. 370, 457 A.2d 931 (1983), we held that where there has not yet been an arrest for the offense in question, but where the defendant is in ...


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