United States District Court, Eastern District of Pennsylvania
August 19, 1999
UNITED STATES OF AMERICA
DARRYL LAMONT FRANKLIN.
The opinion of the court was delivered by: Van Antwerpen, District Judge.
OPINION AND ORDER
This memorandum explains the reasons for our rulings from the
bench in open court on August 17, 1999 during a pretrial hearing
at which the defendant, Darryl Lamont Franklin, defendant's
counsel, Glennis Clark, Esquire, and counsel for the government,
Robert Goldman, Esquire, were all present. The defendant is
charged with Conspiracy to Commit Hobbs Act Robbery and
Interference with Commerce by Robbery in violation of
18 U.S.C. § 924(c), Using and Carrying a Firearm During and in Relation to a
Crime of Violence in violation of 18 U.S.C. § 924(c), and
Possession of a Firearm by a Convicted Felon in violation of
18 U.S.C. § 922(g). We will outline the facts developed at the
hearing and we will then discuss our ruling with regard to each
of defendant's pretrial motions.
On the afternoon of April 14, 1999, the defendant and another
person entered Talisman's Jewelry Store at 12th Street and Green
Street, Reading, Berks County, Pennsylvania for the purpose of
robbing money and jewelry from the store. Danny Cafoncelli, a
store employee, was struck in the head, handcuffed at gunpoint,
and thrown down a flight of cellar stairs in the basement of the
store. While the defendant was in the store, he pointed a gun at
another employee, Louis Cafoncelli, who is the father of Danny
Cafoncelli. At that point, Louis Cafoncelli drew a 9mm revolver
which he carries. There was an extended struggle during which the
defendant was shot. The defendant ultimately fled from the store.
The government alleges that approximately $30,000 in cash,
jewelry, a handgun and a rifle were taken during the robbery.
The Reading Police responded to the jewelry store robbery.
Officer Fizz and
other officers interviewed Louis Cafoncelli who gave a brief
description and said that one of the perpetrators may have been
shot. While this interview was taking place, Officer Fizz was
informed by a bystander that nearby St. Joseph's Hospital was
treating a gunshot victim. Officer Fizz immediately responded to
the hospital. In the meantime, Louis Cafoncelli was driven to
Officer Fizz arrived at the hospital and entered the emergency
room where the defendant was on a gurney receiving treatment. The
defendant was in pain. On the floor next to the gurney, were
bloody articles of clothing which had been cut-up in the process
of removing them from the defendant. Officer Fizz asked the
defendant what had happened. The defendant told Officer Fizz he
had been robbed but he was unable to say where the robbery took
place. The defendant gave the false name of Lamont Williams to
both Officer Fizz and the hospital. After talking to the
defendant, Officer Fizz left him and went outside to confer with
another uniformed officer. At that point, the defendant was not
under arrest and no police officer was present. Officer Fizz and
the other officer learned from hospital security personnel that
jewelry had been found outside the hospital in a trash can. At
that point, detectives from the Criminal Investigation Division
were summoned to the hospital.
Detective Detrick arrived at the hospital in about ten minutes
and conferred with the officers present. At that point, the
defendant was placed under arrest and a guard was posted at his
bedside. At the time of the arrest, Officer Fizz collected the
bloody cut-up articles of clothing from the floor because he knew
that the hospital would throw them out if he did not take action.
Detective Detrick took a photograph of the defendant in the
hospital and returned to headquarters where he made a 8-person
photographic line-up display. After viewing the photographic
line-up display approximately 2½ hours later at police
headquarters, Louis Cafoncelli identified the defendant as one of
the persons who had robbed the jewelry store. Detective Detrick
made a xerox copy of the photographic line-up display before
returning the individual pictures which were used in it to their
respective files. This xerox copy was received at the pretrial
hearing as Government Exhibit 1. For the sake of clarity, the
color pictures used for the original line-up were reassembled and
placed in a photographic line-up similar to the original line-up.
This was received at the pretrial hearing as Government Exhibit
On June 10, 1999, F.B.I. Agent Tom Neeson interviewed a Mr.
Colter, who was a prison cellmate of the defendant. Colter told
the agent that the key to the jewelry store basement door which
led to the cellar steps was still in the defendant's clothing
retrieved from the floor of the emergency room. Police personnel
subsequently found this key in the defendant's sport coat. The
clothing is currently undergoing laboratory analysis.
We had originally scheduled trial for July 19, 1999. We
received a Motion for Change of Appointed Counsel which was filed
by the defendant on June 29, 1999. In that motion, the defendant
alleged that his CJA counsel, Attorney Mark Refowich, had "shown
both a deficiency in performance that has resulted in prejudice"
to the defendant. We held a hearing on July 9, 1999 and granted
the defendant's motion appointing Mr. Glennis Clark as new CJA
counsel. We were also forced to continue the scheduled trial
which is now set for Monday, August 30, 1999.
a. Motion to Suppress Pre-Trial Identification Through Use
of Photo Spread
We have examined both Government Exhibit 1 and Government
Exhibit 2 in great detail. We find that the photographic line-up
display was not unduly suggestive. The defendant was displayed
along with seven other black males of reasonably similar
appearance. The angle of
the camera was somewhat lower in the defendant's picture,
however, it was not apparent that he was reclining and, in any
event, Louis Cafoncelli was not aware at the time he saw the
photographic line-up that the police had located the defendant in
a hospital emergency room. The only difference in the defendant's
picture was the background which did not match the background of
the other photographs. Nevertheless, very little of the
background showed. The identification took place only some 2½
hours after the robbery. We will not fault the police for this
minor difference and do not believe that it made the photographic
line-up display unduly suggestive. The court questioned the
detective at the pretrial hearing and we are satisfied that Louis
Cafoncelli was not given any improper information or hints during
the identification process.
In an abundance of caution, we note further that even if the
photographic line-up display had been unduly suggestive (and it
was not), an in-court identification would be appropriate under
the standards of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct.
2243, 2253-2254, 53 L.Ed.2d 140 (1977). We find that the witness,
Louis Cafoncelli, had an ample opportunity to observe the
defendant initially and while they struggled for a gun on April
14, 1999. The witness gave the police a description of the
defendant and successfully identified the defendant in the
photographic line-up display some 2½ hours after the robbery. The
witness was also able to identify the defendant without
hesitation at the pretrial hearing before this court. Defendant's
motion will be denied.
b. Motion to Bar Government From Using Defendant's Prior
Criminal Record for Impeachment Purposes
To assist the defense, we have made a tentative ruling by
considering Fed.R.Evid. 609(a) and applying the balancing test
set forth in Fed.R.Evid. 403. We believe that the defendant's
testimony and his credibility could be a very important issue in
this case. Paragraph 5 of the defendant's motion states the
5. The Defendant is planning to take the stand and
offer testimony that at the time of the robbery he
was walking on the street in front of the store and
he saw a man with a black suit run from the store
chased by an elderly man. That elderly man had a gun
and fired at the fleeing man. The Defendant claims
that he was hit by the bullets and that is all he
The prior conviction for burglary and assault would have
impeachment value in this regard. It appears that defendant
completed serving his sentence within the ten year window of
Fed.R.Evid. 609(b). Nevertheless, the age of this conviction is
of some concern. The defendant is not charged with either a
burglary or assault in the present case. Nevertheless, there is
some similarity to the present offense in which an assault took
place. We will give a cautionary instruction to the jury and on
balance we believe that the probative value for impeachment
outweighs any prejudicial value. Defendant's motion is deferred
until the time of trial.
c. Motion to Suppress All Evidence Seized Due to Delay in
Time of Arraignment Between Defendant's Arrest and Actual
Most of this motion is moot based upon the government's
representation that it will not use any statements made by the
defendant after his arrest at the hospital. As noted, an officer
initially questioned the defendant and then left him alone. Some
ten minutes later, the officer conferred with a detective
following which the defendant was placed under arrest and
articles of his bloody cut-up clothing were retrieved from the
floor of the emergency room. We believe that these articles of
clothing were properly seized by the police. Had they not been
seized, they would have been thrown out.
Although the initial investigation in this case was conducted
by the Reading Police, the validity of searches and seizures
in our court is governed by federal law and not state law.
United States v. Rickus, 737 F.2d 360, 364 (3d Cir. 1984).
Warrantless searches are held to be valid when conducted
substantially contemporaneous with an arrest and spatially
limited to the person of the arrestee, the possessions
immediately associated with the person of the arrestee, and the
area within the arrestee's immediate control. New York v.
Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981);
United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973). "The justification or reason for the
authority to search incident to a lawful arrest rests quite as
much on the need to disarm the suspect in order to take him into
custody as it does on the need to preserve evidence on his person
for later use at trial." Robinson, at 476. The police certainly
had reasonable grounds to believe the defendant might still be
armed. The clothing was properly seized at the time of
defendant's arrest so that it could be preserved for use as
evidence at trial. We seriously doubt that the defendant had any
reasonable expectation of privacy in the hospital emergency room
which he shared with all the medical personnel. Mere presence,
without an expectation of privacy, will not give standing to
contest a search. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct.
421, 429, 58 L.Ed.2d 387 (1978); United States v. Echegoyen,
799 F.2d 1271, 1277 (9th Cir. 1986). Furthermore, the clothing
was in plain view. Items of evidence spotted in plain view or
during a protective sweep incident to arrest may properly be
seized. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992,
993, 19 L.Ed.2d 1067 (1968); United States v. Standridge,
810 F.2d 1034, 1038 (11th Cir. 1987); United States v. Hultgren,
713 F.2d 79, 88-89 (5th Cir. 1983).
We note additionally that a defendant has no expectation of
privacy in discarded property. California v. Greenwood,
486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); United States v.
Reicherter, 647 F.2d 397 (3d Cir. 1981). In this case, there is
uncontradicted testimony from the police officer that the
hospital would have thrown the articles of clothing on the floor
out in the garbage. The clothing was contaminated with blood and
had been cut up in the process of removing it from the defendant.
At no point did the defendant object or assert any ownership
rights in this clothing. Under these circumstances, we do not
believe that society would accept a claim of privacy in such
destroyed clothing as reasonable. The failure of defendant to
object is inconsistent with an expectation of privacy. United
States v. Anderson, 859 F.2d 1171, 1177 (3d Cir. 1988).
Furthermore, we believe exigent circumstances were present and if
the police officer had not immediately seized the articles of
clothing, they would have been disposed of by the hospital.
Defendant's motion will be denied.
d. Motion to Compel Release of 911 Tape and Suppression of
Evidence Due to Delay in Arraignment
The government shall provide the defense with the requested 911
evidence as soon as possible. The request for suppression will be
denied consistent with Paragraph c. above, however, the motion to
compel release will be granted.
e. Motion to Suppress Key
The key was later found in defendant's clothing as discussed in
the facts. Since the police were properly in possession of the
defendant's clothing, they were in proper possession of the key.
The motion will be denied.
f. Motion for Bail
This matter was not pursued at the time of the pretrial hearing
and the motion will be denied.
g. Pro Se Motion for Change of Counsel (Redress)
The defendant filed another pro se motion for change of CJA
counsel on August 3, 1999. Mr. Glennis Clark is the second CJA
lawyer to represent the defendant, and he was appointed after the
expressed dissatisfaction with his prior CJA lawyer. This change
necessitated a continuance of the prior trial date. The defendant
had several complaints, which we allowed him to state on the
record. Nevertheless, when the court inquired whether or not Mr.
Clark should continue to represent him, defendant responded in
the affirmative. The motion will be dismissed as moot.
An appropriate order follows.
AND NOW, this 19th day of August, 1999, consistent
with the foregoing Opinion, it is hereby ORDERED,
1. Defendant's Motion to Suppress Pre-Trial
Identification Through Use of Photo Spread filed June
15, 1999 is DENIED.
2. Defendant's Motion to Bar Government From Using
Defendant's Prior Criminal Record for Impeachment
Purposes filed June 15, 1999 is DENIED at this time
without prejudice to the right of the defense to
renew this motion at the time of trial.
3. Defendant's Motion to Suppress All Evidence
Seized Due to Delay in Time of Arraignment Between
Defendant's Arrest and Actual Court Arraignment filed
June 18, 1999 is DENIED.
4. Defendant's Motion to Compel Release of 911 Tape
and Suppression of Evidence Due to Delay in
Arraignment filed June 18, 1999 is DENIED IN PART
and GRANTED IN PART.
5. Defendant's Motion to Suppress Key filed June
30, 1999 is DENIED.
6. Defendant's Motion for Bail filed June 30, 1999
7. Defendant's Pro Se Motion for Change of
Counsil (Redress) filed August 3, 1999 is DISMISSED
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