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Commonwealth v. Crork

February 10, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JEFFREY ALTON CRORK, APPELLANT



Appeal from the Judgment of Sentence September 12, 2007 In the Court of Common Pleas of Lancaster County Criminal at No(s): CP-36-CR-0003206-2006.

The opinion of the court was delivered by: Stevens, J.

BEFORE: STEVENS, FREEDBERG, and POPOVICH, JJ.

OPINION

¶ 1 Jeffrey Crork appeals from a September 12, 2007 judgment of sentence entered following his conviction for robbery pursuant to 18 Pa.C.S.A. § 3701. We affirm.

¶ 2 Crork was arrested after a 22 year old hotel clerk identified him as the man who had robbed her on May 19, 2006. Several days after the robbery, the clerk identified Crork from an eight person photo lineup, and also identified a single photo of a tattoo as the tattoo she had seen on the robber's arm. After Crork was charged with one count of robbery, he filed a pre-trial motion seeking to suppress the clerk's identification of his photo on the ground that the photo lineup used was prejudicial and unduly suggestive. Motion filed 5/24/07. Crork also sought suppression of the clerk's identification of the tattoo on the ground that he was prejudiced by the presentation of the single photo instead of a photo lineup of similar tattoos. Id. Following a hearing, the trial court declined to suppress either identification, and a jury trial was conducted on July 9, 2007.

¶ 3 Crork was eventually convicted of robbery and sentenced to a prison term of eight to 20 years. He now raises three allegations of error on appeal.*fn1 His first two claims pertain to the trial court's denial of his suppression motion. Our standard of review of a suppression ruling is as follows:

We determine whether the court's factual findings are supported by the record and whether the legal conclusions drawn from them are correct. Where, as here, it is the defendant who is appealing the ruling of the suppression court, we consider only the evidence of the prosecution and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the whole record. If, upon our review, we conclude that the record supports the factual findings of the suppression court, we are bound by those facts, and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Pruitt, __ Pa. __, __, 951 A.2d 307, 317 (2008). Here, Crork first asserts that it was error for the trial court to refuse to suppress the clerk's identification of Crork's tattoo based on a single photograph of the tattoo, because use of the single photograph instead of a photographic lineup of other similar tattoos rendered the identification unduly suggestive, unfair, and prejudicial. Appellant's brief at 16.

¶ 4 Crork's counsel raised this issue during the suppression hearing, urging that the identification of a person's tattoo should be subject to the same rules and constitutional protections as identification of the person himself, including the requirement that an out-of-court identification be made from fair, non-suggestive photo arrays. N.T. 7/9/07 at 33. The Commonwealth countered that a tattoo should be viewed as akin to the identification of an inanimate object, citing Commonwealth v. Chmiel, infra, and that any uncertainty in the description goes to the weight accorded the testimony, not its admissibility. Id. at 35. In denying Crork's request to suppress the clerk's identification of the tattoo, the trial court explained:

With regard to the tattoo, I do find that this -- any discrepancies between the victim's initial description of the tattoo and what was subsequently identified in the photograph is an issue of weight for the jury. Certainly some description was provided by the victim at the time she originally provided the information to law enforcement authorities. And, again, to the extent that her description differs from the actual tattoo or the photograph of the tattoo that she was shown, that is an issue of weight for the jury.

N.T. 7/9/07 at 36-37. In their appellate briefs, both parties renew the points they raised during the suppression hearing, and indicate that they believe this issue to be one of first impression. Appellant's brief at 17; Commonwealth's brief at 7.

¶ 5 While it appears that no Pennsylvania Court has addressed whether constitutional standards governing identification of persons should apply to identification of tattoos, Pennsylvania courts have been asked to determine whether the constitutional protections afforded during identifications of persons apply to the identification of inanimate objects.

¶ 6 In Commonwealth v. Carter, 414 A.2d 369 (Pa. Super. 1979), witnesses to a robbery identified a brown bag and gun barrel (which were then being carried by a police officer) as the objects carried earlier by the robber. Id. 414 A.2d at 371. In declining to afford the same constitutional protections to the identification these objects of real evidence as those afforded to the identification of a person, a panel of this Court explained:

One of the purposes of invoking such stringent requirements on testimony relating to the identity of the accused is the enormous probative weight of such evidence, ofttimes deciding the issue by its admission alone. Identification of an item of real evidence, however, does not generally have this effect. Consequently, it has never been the case that identification of an object must be subject to the same precautions given the identification of a person. Rather, any uncertainty in the ...


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