Commonwealth v. Aaron

386 A.2d 1006, 255 Pa. Super. 289, 1978 Pa. Super. LEXIS 2893

• Court: Superior Court of Pennsylvania
• Decided: April 28, 1978
• Docket: 1542
• Status: Published

Opinions

PRICE, Judge:

Appellant was tried before a judge and jury on December 13 through December 19, 1974, and convicted of robbery,¹ aggravated assault,² simple assault,³ possessing instruments of crime⁴ and possessing a prohibited offensive weapon.⁵ A sentence of ten to twenty years imprisonment was imposed on the robbery conviction and a concurrent term of two to four years was imposed on the weapons offenses. Sentences on the other convictions were suspended. This case is before us on direct appeal. We affirm the judgment of sentence.

On September 2, 1974, Maureen Stewart and Theresa Liberi left the Theater of Living Arts, near Fourth and South Streets in Philadelphia, about 11:00 p.m. They walked approximately a block, to Fourth and Lombard Streets, to wait for a bus. While the two were waiting, a man approached them and and asked when the bus was due. Not long thereafter, the man asked Miss Stewart for a match, which she replied she did not have. After some further remarks were exchanged, as Miss Stewart turned to resume conversation with her companion, she was stabbed in the back. Although Miss Stewart was unable, due to her position, to observe her assailant, Miss Liberi saw the man stab her friend. Miss Stewart cried out that she had been stabbed and began to scream for assistance. Miss Liberi tried to ward off the attacker with her hands, but was cut on one hand and stabbed in the side.

Miss Stewart fled across the street but the man pursued her, still brandishing the weapon, and pinned her against a car. At this point, seeing her assailant preparing to strike another blow, Miss Stewart took off her shoulder bag and threw it to him, telling him to take it, “that it had a lot of money.” (NT 110). The man replied, “Give it to me, bitch” (NT 110), and took the purse. Both women fled, and were soon aided by people from the neighborhood, who called the police and took the victims to the hospital. A police team which examined the scene of the crime found blood on the street, blood on the car against which Miss Stewart had been pinned, and a blood-stained knife.

Shortly after Misses Stewart and Liberi arrived at nearby Pennsylvania Hospital for treatment, the police began to bring in suspects for possible identification. The women, who were separated, were each shown three individuals, one at a time. Both women positively identified the third suspect as the man who had assaulted and robbed them.

Appellant’s opening assignment of error is the lower court’s refusal to suppress the identifications made .by the victims in the hospital. The first basis for suppression asserted is that this confrontation was in violation of appellant’s right to counsel under the decisional law of this state.⁶ In Commonwealth v. Richman, 458 Pa. 167, 171, 320 A.2d 351, 353 (1974), our supreme court stated that “Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), appropriately draws the line for determining the initiation of judicial proceedings in Pennsylvania at the arrest.” Correspondingly, the court held that in Pennsylvania the right to counsel at a lineup attaches at the same juncture. There is, however, a significant difference between the institutional lineup situation in Commonwealth v. Richman, supra, and the facts of the instant case.

Officer Iacuzio of the Philadelphia Police testified that he and his partner, Officer Dizio, arrested appellant at approximately 12:25 a.m. on September 3, 1974, in the Clam Bar on the corner of Passyunk and Fitzwater Streets in Philadelphia. (NT 171). The circumstances were as follows. As Officer Iacuzio entered the establishment, he saw appellant sitting at the bar having a drink. His attention was attracted by appellant’s clothing, which included a multicolored shirt and a tan jeff cap. Similar items of apparel had been mentioned in a police radio broadcast describing a man involved in a purse snatching in the vicinity of Fourth and Lombard Streets earlier in the evening. Officer Iacuzio returned to the police vehicle, parked near the door of the bar, to check the description over the radio. Having confirmed his recollection, he reentered. Appellant arose and moved to the back of the bar, in the direction of the men’s room. Officer Dizio went around to the bar’s other entrance. After checking the men’s room and finding appellant not to be inside, Officer lacuzio turned to his left and saw appellant emerging from steps which led down to the basement. Appellant was wearing only a black, perforated T-shirt on his upper body. Officer lacuzio asked what he had done with the other clothing, and appellant denied he had been wearing anything else. After placing appellant under arrest, Officer lacuzio descended to the basement, where he found the hat and shirt appellant had previously worn. The officers immediately transported appellant to Pennsylvania Hospital for possible identification.

Although Officer lacuzio told appellant that he was under arrest, this fact alone does not require suppression of the hospital identifications. It is apparent, with or without the officer’s testimony, that appellant had been subjected to “arrest” in the broadest sense of that term, see Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), when the police escorted him from the Clam Bar. However, for several reasons, we find that appellant’s right to post-arrest counsel under Commonwealth v. Richman, supra, was not violated.

First, we find this case to be, in its salient factors, similar to Commonwealth v. Ray, 455 Pa. 43, 315 A.2d 634 (1974), and controlled by the holding in that opinion rather than by the rule in Richman. In Ray, a gunman attempted an early morning robbery of a motel office. The night clerk took advantage of an opportunity to call for help and the intruder fled. Pursuing, the clerk saw the man enter the passenger side of an automobile parked approximately 150 feet down the highway and drive away. The clerk contacted the police and gave a description of the robber and the car. Not long thereafter, an automobile meeting the description was stopped nearby for speeding. A passenger in the vehicle appeared to meet the depiction of the would-be bandit, so the police contacted the motel clerk to see if he could identify the suspect. The clerk accompanied a police officer to a parking lot where the car and its passengers had been detained and identified Ray, who was still seated in the auto. The identification took place approximately fifty minutes after the attempted robbery.

There are several clear parallels between the facts in Ray and the circumstances presented in the instant case. The victims in both cases had excellent opportunities to view their assailants. In each case the suspect was identified within a relatively short time following the crime. In both cases the men were detained following apprehension, and subjected to a prompt identification procedure prior to any further police action. The court in Ray states that “[h]e had not been arraigned or otherwise charged with any crime, nor had any other formal criminal proceedings been brought against him. Indeed, he had not even been formally arrested . . Commonwealth v. Ray, supra, 455 Pa. at 49, 315 A.2d at 636. The events prior to and including the identification are characterized as “the preliminary phase of the investigation.” Commonwealth v. Ray, supra, 455 Pa. at 51 n. 8, 315 A.2d at 637 n. 8. Although the court in Ray describes the suspect as being “detained” pending the identification, it is clear that Ray was no less subject to police custody and control than appellant. Further, it is reasonable to assume that had the victims in this case found that appellant was not the man who had attacked them, appellant would have been released and the search would have been resumed. To distinguish this case from Ray solely on the fact that appellant was told he was under arrest, when it is clear that the suspects in both cases were similarly deprived of their ability to refuse cooperation and both were thus includable within the broad definition of arrest, would be artificial and logically insupportable.

Another important similarity between Ray and the case before us is that neither victim-suspect confrontation took place at the actual scene of the crime. Ray was identified as he sat in the car, not standing in the motel office. Appellant herein was identified in a hospital rather than on the street. We discern nothing so specially prejudicial in the hospital environment as to take this case outside the holding in Ray.

Appellant also contends that Commonwealth v. Hall, 217 Pa.Super. 218, 269 A.2d 352 (1970), establishes his right to counsel at the pre-trial identifications and consequently compels their suppression. Hall involved a confrontation between the victim and several suspects which took place in the hospital within a relatively short time following the crime. The court held this confrontation to be improper, reasoning that since the complainant had not suffered serious injury the police could have taken time to arrange a formal, counselled lineup at the hospital or could have brought the victim to the police station for a formal, counselled lineup. In Commonwealth v. Ray, supra, however, our supreme court overruled Hall to whatever extent it was inconsistent with that decision. The instant case is governed by Ray rather than the disapproved analysis in Hall.

Commonwealth v. Ray, supra, and the instant case are definitely distinguishable from Commonwealth v. Richman, supra, the decision which delineated the right to counsel at a post-arrest lineup. The appellant in Richman was arrested five days after the offense of which he was accused and was incarcerated for several hours prior to being placed in a lineup. The suspect in Ray and appellant herein were both apprehended shortly after the respective crimes occurred and were both promptly identified, prior to being taken to a police station or incarcerated. The foundation of the right to counsel in Richman is evident. The defendant was incarcerated and should have been readily available for consultation with his attorney. Further, a police station or jailhouse setting presents a much greater potential for prejudicial confrontations. However, Commonwealth v. Ray, supra, and the case before us involve “pre-incarceration”⁷ identifications, in which the paramount consideration is the length of time between the criminal act and the confrontation. To require the presence of counsel in such situations would at least seriously impair and could possibly destroy the effectiveness of an important law enforcement procedure.

Looking beyond the controlling influence of Ray, it is certain that our supreme court did not intend, by its holding in Richman, to disallow “on the scene” identifications, long recognized as a viable procedure in law enforcement. Although the confrontation in the instant case did not occur at the scene of the crime, it contained the most important elements of a classic “on the scene” identification, and it was certainly far removed from a formal, custodial lineup, the situation addressed by the court in Richman.

In Commonwealth v. Santiago, 229 Pa.Super. 74, 78, 323 A.2d 826, 828 (1974), we stated that:

“A fresh, on-the-scene confrontation is admissible evidence. As the Supreme Court stated in Commonwealth v. Mackey, 447 Pa. 32, 36, 288 A.2d 778, 780 (1972): ‘. . . The primary reason for the admissibility of such confrontations is that the close proximity in time and place to the actual offense so enhances the reliability as to outweigh the prejudice.’ ”

Our supreme court, confronting the same issue in Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974), observed that:

“The Russell court [Russell v. U. S., 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969)], which fully discussed the opposing policy arguments, recognized the high degree of suggestiveness in confrontations where a single suspect is viewed in the custody of the police. However it decided that the reliability inhering in an immediate identification and the rapid release of a mistaken suspect outweighed the prejudice. We believe that the close proximity in time and place does greatly reduce the chance of misidentification and we agree that mistaken suspects ought not suffer the hardship and embarrassment inuring to protracted police custody. Furthermore, should the prompt on-the-scene confrontation fail to render a positive identification, the police may quickly resume their search for the guilty party.”

It is evident that the most important element in pre-incarceration identifications is the length of time intervening between the crime and the confrontation. See United States v. Savage, 470 F.2d 948 (3d Cir. 1972), cert. denied, 412 U.S. 930, 93 S.Ct. 2759, 37 L.Ed.2d 158 (1973) (confrontation within one-half hour after robbery); Commonwealth v. Ray, supra (confrontation within approximately. fifty minutes). In this case, although the exact time interval is not clear from the record, it appears that appellant was identified by the victims within one and a half hours following the crime (NTS 12-15, 40, 43, NT 138). The proximity in time between the act and the identifications weighs heavily in favor of their probative value. Thus although the term “on the scene” is nominally inapposite to the confrontations herein, the analysis which establishes the admissibility of the former category of identifications applies convincingly to the latter.

Appellant’s second line of attack on the pre-trial identifications is on the ground of suggestiveness. It is argued that because one-to-one confrontations or “identification parades” such as the one involved in this case are inherently prejudicial, the hospital identifications herein could only be justified if the victim were in extremis, which they were not.⁸ However, the foregoing discussion of Commonwealth v. Ray, supra, has illustrated that a one-to-one confrontation occurring shortly after the crime but away from the scene can produce a legally viable identification. Although factors such as variances in lighting, the physical and mental condition of the victim or witness and police conduct in presenting the suspect should always be considered in determining the admissibility of an identification, there is no reason to presume that a hospital environment is so inherently conducive to misidentification that, absent counsel and a formal lineup, suppression is required.

Appellant alleges two particular elements of undue suggestiveness. It is asserted that the first two suspects shown to the victims were so unlike their earlier description of the assailant as to prejudicially highlight the correspondence between that description and appellant. The record indicates that one suspect was considerably older and the other somewhat taller than appellant. This was not, however, a formal lineup at a police station. The suspects were presented separately and at intervals of at least a few minutes. There is nothing to suggest that the police sought to influence the identification procedure in any manner.

Another claim of prejudice in regard to the hospital identifications is that one of the police officers who brought appellant before Miss Stewart held in his hand the shirt and cap which appellant had been wearing when the officers first observed him in the Clam Bar. Miss Stewart noted the clothing at that time. (NT 234). There is no indication, however, that her identification of appellant was influenced by the hat and cap. On the contrary, testimony of both witnesses indicates that their identifications were based on recognition of appellant’s face. (NTS 27, 44). Both Miss Stewart and Miss Liberi had an excellent opportunity to observe appellant prior to the incident. The police officers made no attempt to influence the victims in regard to any individual, instructing them only to be certain before identifying a suspect. (NTS 28). The identifications by both women were immediate, positive, and unshaken. Although the environment and procedure were not ideal, neither were “the circumstances of the pre-trial confrontation . so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification, Stov[a]ll v. Denno, 388 , 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).” Commonwealth v. Turner, supra, 454 Pa. at 523, 314 A.2d at 498. There was thus no error in the lower courts’ refusal to suppress the hospital identifications.

The final contention advanced by appellant is that he was improperly convicted of robbery because there was no evidence that the victims were injured in the course of a theft.⁹ This assertion is apparently based on the fact that appellant attacked the women prior to attempting to deprive either of them of any property. However, appellant’s menacing pursuit of Miss Stewart following his initial attack and his subsequent taking of her purse illustrate a clear nexus between the threat or infliction of serious bodily injury and theft. This argument is thus without merit.

The judgment of sentence of the lower court is affirmed.

SPAETH, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion. WATKINS, former President Judge, did not participate in the consideration or decision in this case.

1 . 18 Pa.C.S. § 3701.

2 . 18 Pa.C.S. § 2702.

3 . 18 Pa.C.S. § 2701.

4 . 18 Pa.C.S. § 907.

5 . 18 Pa.C.S. § 908.

6 . The pre-trial identifications in this case did not violate appellant’s right to counsel under the Sixth Amendment and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the United States Supreme Court held that the right to counsel at a pre-trial confrontation does not attach until “after the initiation of adversary judicial proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 406 U.S. at 689, 92 S.Ct. at 1882.

7 . Ascertaining an appropriate term to describe the identification procedure in this case presents an intriguing problem in legal nomenclature. As the confrontation did not take place at the site or in the immediate vicinity of the crime, the term “on the scene” is clearly inappropriate, although, as stated in text infra, the instant identifications possess indicia of reliability strongly similar to identifications generally grouped under that rubric. The term “pre-incarceration identification” has been introduced herein to signify a confrontation which has occurred soon after the criminal event and, although after the suspect’s arrest, prior to his introduction into a formal custodial environment.

8 . The stab wound in Miss Stewart’s back was found to be superficial, and although Miss Liberi suffered a collapsed lung and spent ten days in the hospital, she was apparently never in danger of death from her injuries. Nothing in the record, however, suggests that the police were aware of the medical status of the victims prior to encountering them in the hospital.

9 . The definition of robbery applicable to this case is found in 18 Pa.C.S. § 3701 which provided, prior to its amendment, as follows:

“(1) A person is guilty of robbery if, in the course of committing a theft, he:

(1) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree.

(2) An act shall be deemed in the course of committing a theft if it occurs in an attempt to commit theft or in flight after the attempt or commission.”