Commonwealth v. Mobley

622 A.2d 972, 424 Pa. Super. 385, 1993 Pa. Super. LEXIS 1077
CourtSuperior Court of Pennsylvania
DecidedMarch 29, 1993
DocketNo. 02676
StatusPublished
Cited by7 cases

This text of 622 A.2d 972 (Commonwealth v. Mobley) 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. Mobley, 622 A.2d 972, 424 Pa. Super. 385, 1993 Pa. Super. LEXIS 1077 (Pa. Ct. App. 1993).

Opinion

HESTER, Judge:

Charles Mobley appeals from the judgment of sentence of twenty-one to seventy-two months imprisonment imposed after he was found guilty at a nonjury trial of possession of a controlled substance with intent to deliver. We affirm.

[388]*388On February 13, 1991, between 4:30 p.m. and 7:00 p.m., Philadelphia Police Officer Sandra Haines and another female officer were operating undercover on Fernon Street in Philadelphia. Officer Haines’s companion purchased crack cocaine from an unidentified male. The male informed Officer Haines that he did not have any more drugs but that she should wait for another drug dealer, who would be coming shortly. Several minutes later, just as it was about to get dark, appellant arrived in a car.

Officer Haines approached appellant, who asked her what she wanted. Officer Haines replied, “I need four caps,” which means four vials of cocaine. Notes of Testimony, 2/4/92, at 45. At the time, Officer Haines was inches away from appellant’s face. Appellant entered 1919 Fernon Street and returned shortly with four vials of crack cocaine. Appellant was standing three to four steps away from Officer Haines when he sold her the drugs. As the officers were involved in an ongoing narcotics investigation, appellant was not arrested at the time. However, Officer Haines immediately returned to the police station and identified appellant from a photograph.

Based upon these events, police obtained a search warrant for 1919 Fernon Street, which was executed on February 21, 1991. Appellant was not present, but police recovered a motor vehicle owner’s card containing appellant’s name as well as cocaine base and a Colt .45 automatic weapon. The address on the owner’s card was 1919 Fernon Street. An arrest warrant was issued, and appellant was arrested on March 15, 1992, while police were executing a search warrant during an unrelated drug investigation.

Based on this evidence, appellant was convicted of possession of a controlled substance with intent to deliver. This appeal followed imposition of the described sentence. Appellant first claims that Officer Haines’s photographic identification should have been suppressed. In reviewing a trial court’s decision denying the suppression of evidence, we

must consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains [389]*389uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). If the record supports the factual findings of the suppression court, as well as the legitimacy of the inferences and legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). “It is, however, exclusively the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded to their testimony.” Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982).

Commonwealth v. Mason, 415 Pa.Super. 22, 24-25, 608 A.2d 506, 507 (1992).

In the present case, the record indicates the following. Before Officer Haines began her undercover operation on February 13, 1991, she was shown approximately ten photographs of suspected drug dealers. Although appellant’s first contention is that use of this photographic display was improper, he fails to support the position that the viewing of suspected criminals prior to a criminal investigation is legally infirm.

An identification resulting from a suggestive photographic display is suppressed because use of suggestive displays may result in a witness’s erroneous identification of the defendant based on the display. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (use of suggestive photographic display is improper as it may cause witness to err in identification since witness may have had brief opportunity to view suspect and may premise identification on display rather than on criminal event); see also Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976).

In the present case, appellant offers no reason why it should be impermissible for an investigating officer to review suspects before an investigation so that the officer will be able to identify the actors after the events. Further, we cannot agree with appellant’s contention that Officer Haines identified him due to the display, which he does not establish was [390]*390“suggestive,” rather than based upon her observations. She simply knew appellant prior to their meeting. The fact that she gained this knowledge through her prior review of photographs does not taint the identification. It is ludicrous to suggest that police may not use photographs to become familiar with suspects when they are investigating criminal activity.

Further, we reject appellant’s second contention, which is that Officer Haines’s use of the same photographic display following the drug sale was improper. He bases this claim on the allegation that only appellant’s picture was presented to Haines when she returned to the police station following the drug transaction. This is refuted by the record, which establishes that Officer Haines was shown the same display after the drug sale, and she stated that appellant sold her the drugs. As there is not a scintilla of evidence that Officer Haines identified appellant based on a “suggestive” photographic display rather than her observations, we reject appellant’s contention that the officer’s in-court identification of him must be suppressed.

Appellant next contends that the court improperly restricted his cross-examination of Officer Haines. Specifically, he alleges that he was not permitted to cross-examine the officer about: 1) an alleged inconsistency between her trial and preliminary hearing testimony as to when the drug transaction occurred; 2) how light it was outside at the time of the drug purchase; 3) the length of time that she observed appellant during the transaction; and 4) whether police have the ability to take surveillance photographs of drug transactions.

“The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.” Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986); see also Commonwealth v. Fried, 382 Pa.Super. 156, 555 A.2d 119 (1989). In the present case, our review of the record indicates either that trial counsel was able to elicit the information that he sought to reveal during cross-examination and restrictions were prop[391]

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622 A.2d 972, 424 Pa. Super. 385, 1993 Pa. Super. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mobley-pasuperct-1993.