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August 19, 1999


The opinion of the court was delivered by: Van Antwerpen, District Judge.



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.

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 2.

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

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 ...

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