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
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 ...