Commonwealth v. McGaghey

507 A.2d 357, 510 Pa. 225, 1986 Pa. LEXIS 734

• Court: Supreme Court of Pennsylvania
• Decided: March 27, 1986
• Docket: 83 E.D. Appeal Docket 1985
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

This appeal arises out of convictions for robbery, simple assault and conspiracy. The facts may be summarized as follows: On May 21, 1981, at approximately 9 p.m., Thomas Talbot offered Robin Gentry a ride to the Yictaulic Plant in Easton, Northampton County. Upon arrival at the parking lot, Talbot and Gentry were surrounded by four or five people, including Gentry’s boyfriend, John Miller, two or three other white males and one black male. Miller questioned Talbot as to why he was with Miller’s girlfriend. A scuffle ensued, during which time Miller directed someone to take Talbot’s wallet. When Talbot felt his wallet being removed from his pocket, he turned around and noticed that the black man who had been standing behind him was removing his wallet. The entire incident lasted approximately one minute although Talbot only viewed the black man for about two seconds as he came from behind and removed Talbot’s wallet. Talbot further indicated that while the parking lot was lit, the incident¹ did not occur directly under any light. He characterized the conditions as not very dark but not very well lit either.

Subsequently, Talbot reported the incident to the police describing his assailants as wearing “dark clothing” and being “younger people”. He failed to indicate that the black assailant had a beard and mustache. Furthermore, Talbot had never seen any of his assailants prior to the robbery. Finally, Talbot indicated that prior to the incident he drank probably more than eight mugs of beer.

Gentry and Miller were both arrested. Upon questioning, both indicated to the police that the black man who participated in the crime was named “Joe Ball”. Subsequently, Gentry indicated that Ball’s nickname was “Peanut”. At no time did either Gentry or Miller indicate that Joe Ball and the Appellant were the same person. It was the disclosure of this nickname rather than Talbot’s description that resulted in the Appellant’s arrest. After his arrest, Appellant was never identified by Talbot either in a lineup or photographic array. Talbot actually saw the Appellant for the first time at the preliminary hearing which was held one and one half months after the incident.

At the preliminary hearing, Talbot was in the magistrate’s office before the Appellant was brought into the office. Appellant was brought in wearing handcuffs and was seated at defense counsel’s table. The Appellant was the only black man in the room. During the hearing, Talbot then identified the Appellant as his assailant.

Prior to trial, the Appellant filed his omnibus pre-trial motion requesting the suppression of all identification testimony as unduly suggestive. A suppression hearing was held and the motion denied. A three-day jury trial was held in November of 1981, resulting in the Appellant’s conviction. After the post-trial motions were dismissed, Appellant was sentenced to undergo imprisonment for a period of not less than one nor more than three years. A timely appeal was filed with Superior Court which affirmed the judgment of sentence, 337 Pa.Super. 630, 487 A.2d 440. (Memorandum Opinion, Brosky and McEwen, Spaeth, P.J., dissenting). We thereafter granted allocatur and now reverse.

The problem with an impermissible suggestive identification is the potential for misidentification, resulting in a due process violation if that identification is admitted at trial. Commonwealth v. Silver. 499 Pa. 228, 452 A.2d 1328 (1982). Suggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained. Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976) (Plurality Opinion). To do so, the Commonwealth must establish that the in-court identification resulted from the criminal act and not the suggestive encounter. Fowler, supra.

Most recently, in Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985), we reiterated the necessary factors in determining whether a victim had an independent basis for an in-court identification:

... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation, (citing Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 457 (1978))

506 Pa. at 534, 486 A.2d at 380. In James, we determined that a subsequent in-court identification was not tainted by the suggestiveness of the preliminary hearing identification, because the victim observed her assailant for five to ten minutes during the assault, accurately described her assailant to the police within forty-five minutes of the altercation, and identified her assailant from a photographic array six weeks after the assault. Thus, we concluded that the “... victim did indeed crystalize her identification of Appellant during the assault....” 506 Pa. at 533, 486 A.2d at 380.

Since our scope of review limits our consideration to a determination of whether sufficient evidence has been presented to support the independent basis for the in-court identification, Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980), it is necessary to review this record in light of the factors listed in Commonwealth v. James, supra. Talbot testified that he had never seen the black assailant prior the incident of May 21. During the occurrence, the black man was behind Talbot only to be seen for about two seconds while the wallet was being taken. Prior to the occurrence, Talbot had been drinking. In addition, he was very upset as a result of the incident. Although Talbot testified that the black assailant’s features were “burned into (his) memory”, the initial description to the police was vague and failed to indicate that the assailant had a beard and mustache.¹ Virtually none of the James factors are met. Under these circumstances, the suppression court erred in concluding other than that the in-court identification was the result not of the incident, but of the confrontation at the preliminary hearing.

Accordingly, the order of the Superior Court and the Court of Common Pleas of Northampton County are reversed and this matter is remanded for a new trial.²

McDERMOTT, J., filed a concurring opinion. PAPADAKOS, J., filed a dissenting opinion.

1 . The evidence at trial indicated that at the time of the incident, the Appellant did have a beard and mustache.

2 . Because of our disposition of this appeal, it is unnecessary to address the remaining issues raised by the Appellant: (1) Was the defendant denied a fair trial because of highly prejudicial false testimony presented by a Commonwealth witness? (2) Was the defendant denied a fair trial by the addition, without notice to the defense counsel, of new statements to the previously disclosed oral statement of a co-defendant? and (3) Was the verdict contrary to the law, contrary to the weight of the evidence, and not supported by substantial evidence?