The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: PRETRIAL MOTIONS
On November 5, 2008, Defendant Juwan Shaw was indicted on 6 counts: 3 counts of interference with interstate commerce by robbery (18 U.S.C. § 1951(a)) and 3 counts of carrying, using, and brandishing a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)(1)). The charges arose from three separate robberies at gunpoint, which occurred between January and May 2007.
According to the indictment, the three armed robberies are as follows: (1) the January 11, 2007 robbery of a Domino's Pizza delivery driver; (2) the May 21, 2007 robbery of a TastyKake delivery truck driver; and (3) the May 29, 2007 robbery of the "Lucky's Pizza" shop.
Defendant was arrested on May 29, 2007, following the third robbery alleged in the indictment. He has filed a number of pretrial motions, including motions to suppress the identification procedures used by the police and the in-court identifications by the three separate victims. He has also filed a motion asserting improper joinder of the three offenses in a single indictment, or alternatively, for severance at trial. The Court held an evidentiary hearing on August 31, 2009 on the motions to suppress. This Memorandum sets forth the reasons for the denial of Defendant's motions by the Order dated November 6, 2009. The government asserts that the facts of the three robberies are as follows:
A. January 11, 2007 Robbery
Around 9:00 p.m. on January 11, 2007, Samuel Said, a white male working as a Domino's Pizza deliveryman, was making a delivery at 5415 Harlan St., Philadelphia. After parking his car, he walked past an individual he subsequently identified as Defendant, who was facing him, on the way to the house. After making the delivery and on Said's walk back to his car, Defendant allegedly approached from the side, pointed a gun in his chest, and stated "give me your money or I'll shoot you." Said told the robber that he had "no authority over him." The robber allegedly responded, "What, are you crazy? I told you I'm going to kill you," and took $40 from Said's pants pocket, struck him in the head with the gun, and ran away.
Said immediately reported the robbery to the police, was treated at the hospital for his head wound, and went to the police station later that night. He gave the following description of the robber: black male, 17-18 years old, dark complexion, heavy build, 5'8" tall, 250 lbs., wearing an oversized gray hoody and blue jeans. He described the gun as a small, black revolver with a brownish handle. Said stated that he believed he would recognize the robber if he saw him. Said reviewed over 200 photographs that night -- none of which was Defendant -- and did not identify any as the robber. Five months later, on June 6, 2007, Said identified Defendant from a photo array as the robber.
During the morning of May 21, 2007, Martin Sokoloff, a 69 year-old white male working as a TastyKake delivery truck driver, was preparing to make a delivery around 5500 Landsdowne Ave., Philadelphia. As he was standing in the back of the truck, an individual Sokoloff subsequently identified as Defendant entered the truck from the front driver's door, to which Sokoloff had his back. Defendant allegedly pointed a gun at Sokoloff from about 3-4 feet away and demanded that Sokoloff give Defendant his money. Sokoloff turned to face the robber, who was then face-to-face with him, reached into his pocket, and handed him $12. The robber demanded Sokoloff's wallet, saying "I'm gonna count to five and if you don't give me the wallet, I'm gonna shoot you." Sokoloff refused, and the robber fled. Sokoloff did not report the robbery at that time.
The next day, May 22, Sokoloff was driving his delivery route and saw a man on the porch of 1537 N. 55th St., Philadelphia, one block from where he had been robbed the previous day. Sokoloff made eye contact and recognized the man as the previous day's robber. Sokoloff had seen two police cars parked further down the block, so he drove to the officers to report seeing the robber. The officers and Sokoloff immediately drove back to 1537 N. 55th St., but the suspect was gone. Sokoloff then informed the police of the previous day's robbery. On May 29, the police called Sokoloff to request that he come to the station to attempt to identify the robber. Sokoloff went to the station the next day, May 30. Detective Farley showed him a photo array which included a photo of Defendant. Sokoloff immediately identified Defendant as the robber. Sokoloff described the robber's gun as a small, silver revolver.
Sokoloff again identified Defendant as the robber at Defendant's June 6, 2007 state court preliminary hearing.
During the early afternoon of May 29, 2007, Manuel Garcia was working as a cook at Lucky's Pizza at 1352 N. 57th St., Philadelphia. Lucky's owner, Harisios Pavlou, a 60 year-old white male, was working in the back room. An individual subsequently identified as Defendant entered the restaurant and approached Garcia, asking him for a menu before leaving the restaurant. The individual allegedly returned a half hour later and asked about the cost of a cheesesteak. Pavlou was in the front of the restaurant at this point, and observed the person's exchange with Garcia. Garcia told the individual that he had given him a menu, but the person responded that he had left it at home and forgot the price. Garcia told him the prices, and the individual ordered a small cheesesteak. Pavlou went back to the rear of the restaurant.
As Garcia was cooking the cheesesteak with his back turned, the person walked around to the grill and pointed a gun at Garcia's stomach from 2 feet away. The robber then stated, "Don't move. Put your face down to the floor." Pavlou then came out of the back room, and as he walked towards the front of the store, the robber ordered Pavlou to also lay face down. The robber then tried to open the cash register, but failing, he ordered Pavlou to open it. As the robber attempted to take money from the register, Pavlou grabbed the robber's hand that was holding the gun, and with his other hand, cut the back of the robber's neck with a bread knife. The robber left the restaurant, but while standing on the walk-up steps, he turned towards Pavlou and fired a shot at him from five feet away. The bullet missed Pavlou and went into the restaurant's wall. The robber then fled on foot.
Garcia and Pavlou called the police immediately, and a police officer arrived minutes later. Garcia described the robber as a black male, 14-17 years old, with a dark complexion, heavy build, 5'7", 175-180 lbs., wearing a yellow shirt and gray shorts, and carrying a black revolver. Garcia and Pavlou also stated that the robber's neck was cut and that he held the yellow shirt on the wound as he fled.
Around that same time, the police got a call that a juvenile male had been attacked and stabbed and was being treated for a head/neck wound at 1537 N. 55th St. (the same location Sokoloff had allegedly seen Defendant the week before). Within 5-10 minutes of his call to the police, Pavlou was taken to 1537 N. 55th St., where he saw Defendant being treated for a neck wound in an ambulance.*fn1 Pavlou immediately identified Defendant as the man who attempted to rob Lucky's Pizza. The police then placed Defendant under arrest. Defendant refused to answer the officer's questions or give his name, address, or other identifying information. A woman claiming to be Defendant's sister told Officer Williams, within Defendant's earshot, that Defendant's name was Sharif Smith, and Defendant did not correct her.
After the arrest, Detective Hagey obtained a search warrant to search 1537 N. 55th St. for fruits of the crime of the Lucky's Pizza robbery. In support of probable cause to obtain the warrant, Detective Hagey executed an affidavit stating the facts of the Lucky's Pizza robbery and the police canvas of the area that followed. Specifically, Detective Hagey stated that the police canvassed the area following the robbery looking for a suspect that matched the information they had received, they observed Defendant on the porch of 1537 N. 55th St., the front door of 1537 N. 55th St. was ajar, Detective Wojciechowski observed ...