Commonwealth v. Loop

584 A.2d 343, 400 Pa. Super. 597, 1990 Pa. Super. LEXIS 3426
CourtSuperior Court of Pennsylvania
DecidedDecember 21, 1990
DocketNo. 1306
StatusPublished
Cited by4 cases

This text of 584 A.2d 343 (Commonwealth v. Loop) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Loop, 584 A.2d 343, 400 Pa. Super. 597, 1990 Pa. Super. LEXIS 3426 (Pa. Ct. App. 1990).

Opinion

CERCOME, Judge.

This is an appeal nunc pro tunc from the judgment of sentence of the Court of Common Pleas of Philadelphia County, in which appellant was convicted after a non-jury trial of two counts of aggravated assault and possession of an instrument of crime. Appellant’s post-trial motions were denied and he was sentenced to concurrent terms of five to ten years incarceration on the aggravated assault charges. The lower court’s sentence on the conviction of possessing an instrument of crime was a determination of guilt without further penalty. There was no appeal of the judgment of sentence, but appellant filed a petition for post-conviction relief, in which he requested the right to file a direct appeal nunc pro tunc. The lower court granted the petition and the instant appeal followed.

The case arose out of an incident on July 8,1987, in which at approximately 5:00 p.m., several persons were gathered in front of a housing project on a Philadelphia street when appellant and another man drove up in a car. Some words were exchanged and appellant and his companion drove off and returned in fifteen minutes, circled the block several times and then started shooting with a black handgun. About five shots were fired which wounded one person in the group on the street and a three and a half year old boy playing nearby. Appellant was positively identified by photographic array prior to trial and also was identified in court as the triggerman. At the time of the crime, appellant had no adult criminal record although he did have a history of juvenile offenses. A photograph from appellant’s juvenile file was used in the photographic array connected with appellant’s prosecution in the instant case. [600]*600Appellant’s request to suppress the identifications made on the basis of his juvenile record photograph was denied.

Appellant raises the following issues on appeal:

I. Should this court fashion a suppression remedy from a violation of 42 Pa.C.S.A. section 6308 which precludes improper use of a juvenile’s arrest photograph?
II. Should trial counsel have asked that the trial court recuse itself after it heard of appellant’s full juvenile record during the suppression hearing in view of the fact that trial counsel knew he would be calling several character witnesses in appellant’s defense at trial?

In reviewing the ruling of a suppression court, we must determine whether the factual findings of the court are supported by the record and consider only the evidence of the prosecution and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, cert. den. 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). “Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.” Id., 507 Pa. at 532, 491 A.2d at 112.

In the instant case, appellant does not challenge the suppression court's factual findings but only the legal conclusion of the lower court that the use of appellant’s juvenile photograph in his pre-trial identification does not require suppression of the identification. We find no error in the lower court’s determination.

As appellant’s statement of the questions presented indicates, appellant is asking the court to fashion a suppression remedy which would be based upon an alleged violation of 42 Pa.C.S.A. § 6308 by the use of appellant’s juvenile photograph in his pre-trial identification. Section 6308, which appellant relies upon in its entirety, provides:

[601]*601§ 6808. Law enforcement records
(a) General rule. Except as provided in section 6309 (relating to juvenile history record information), the law enforcement records and files concerning a child shall be kept separate from the records and files of arrests of adults. Unless a charge of delinquency is transferred for criminal prosecution under section 6355 (relating to transfer to criminal proceedings), the interest of national security requires, or the court otherwise orders in the interest of the child, the records and files shall not be open to public inspection or their contents disclosed to the public except as provided in subsection (b); but inspection of the records and files is permitted by:
(1) The court having the child before it in any proceeding.
(2) Counsel for a party to the proceeding.
(3) The officers of institutions or agencies to whom the child is committed.
(4) Law enforcement officers of other jurisdictions when necessary for the discharge of their official duties.
(5) A court in which the child is convicted of a criminal offense for the purpose of a presentence report or other dispositional proceeding, or by officials of penal institutions and other penal facilities to which he is committed, or by a parole board in considering his parole or discharge or in exercising supervision over him.
(b) Public availability.
(1) The contents of law enforcement records and files concerning a child shall not be disclosed to the public except if the child is 14 or more years of age at the time of the alleged conduct and if any of the following apply:
(i) The child has been adjudicated delinquent by a court as a result of an act or acts which include the elements of rape, kidnapping, murder, robbery, arson, burglary, violation of section 13(a)(8) of the act of April 14, 1972 (P.L. 238, No. 64), known as The Controlled [602]*602Substance, Drug, Device and Cosmetic Act, [35 P.S. § 780-113(a)(30) ] or other act involving the use of or threat of serious bodily harm.
(ii) A petition alleging delinquency has been filed by a law enforcement agency alleging that the child has committed an act or acts which include the elements of rape, kidnapping, murder, robbery, arson, burglary, violation of section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act, or other act involving the use of or threat of serious bodily harm and the child previously has been adjudicated delinquent by a court as a result of an act or acts which included the elements of one of such crimes.
(iii) The child is a dangerous juvenile offender.
(2) If the conduct of the child meets the requirements for disclosure as set forth in paragraph (1), then the court or law enforcement agency, as the case may be, shall disclose the name, age and address of the child, the offenses charged and the disposition of the case. The master or judge who adjudicates a child delinquent shall specify the particular offenses and counts thereof which the child is found to have committed and such information shall be inserted on any law enforcement records or files disclosed to the public as provided for in this section.
(c) Fingerprints and photographs.

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Bluebook (online)
584 A.2d 343, 400 Pa. Super. 597, 1990 Pa. Super. LEXIS 3426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-loop-pasuperct-1990.