Commonwealth v. Olivencia

402 A.2d 519, 265 Pa. Super. 439, 1979 Pa. Super. LEXIS 2129
CourtSuperior Court of Pennsylvania
DecidedApril 20, 1979
Docket403
StatusPublished
Cited by22 cases

This text of 402 A.2d 519 (Commonwealth v. Olivencia) 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. Olivencia, 402 A.2d 519, 265 Pa. Super. 439, 1979 Pa. Super. LEXIS 2129 (Pa. Ct. App. 1979).

Opinions

PRICE, Judge:

Following a jury trial commenced on August 25, 1976, appellant was convicted of two counts of robbery,2 one count of aggravated assault,3 and one count of kidnapping.4 Motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of from ten to twenty years on each of the robbery charges, sentences to run concurrently, from five to ten years on the aggravated assault charge, sentence to run concurrently, and from ten to twenty years on the kidnapping charge, sentence to run concurrently with the robbery sentences.

This appeal was originally submitted to us on briefs on January 10, 1978, but we were forced to remand on December 29, 1978, 263 Pa.Super. 624, 400 A.2d 641, for completion of the record. The complete record was certified to us on [444]*444January 17, 1979. We may now consider the questions herein presented.

On appeal, appellant claims that he was deprived of his rights to due process and to effective assistance of counsel because his trial counsel failed to: interview an alibi witness; argue post-trial motions; raise prosecutorial misconduct at post-trial motions; have the assistant district attorney’s summation to the jury stenographically recorded; and move for separate trials for the offenses which involved a police officer, Raymond Schultz. Appellant also contends that the in-court identification of him made by Jose Serrano was tainted by a suggestive pre-trial confrontation and was therefore, inadmissible. Appellant’s final contention is that he was deprived of his right to counsel when the trial court refused to replace trial counsel with another attorney. Finding no merit to any of these contentions, we affirm the judgment of sentence of the court below.

The facts pertinent to our consideration of the instant appeal are as follows. On December 25,1975, while on duty, Officer Raymond Schultz responded to a call he received at 5:40 a. m., reporting a robbery at a gas station in Philadelphia. When he arrived at the scene of the robbery, Officer Schultz was informed by Jose Serrano, who worked as an attendant at the gas station, that the suspect was a Puerto Rican male wearing a red and white sweater, and that following the robbery, the miscreant had run in a northerly direction on Marshall Street. Officer Schultz then proceeded to cruise the area in his police patrol car. A few blocks from the gas station, he encountered appellant, a Puerto Rican male, who was wearing jeans and a brown, black, and white plaid jacket. Officer Schultz intended to ask appellant if he had seen anyone matching the description, but appellant pulled out a gun, pointed it at Officer Schultz’s face, and ordered him out of his car. Appellant took Officer Schultz’s weapon, then ordered him back into the car and had him drive appellant to a location several blocks away. Appellant disembarked there and walked up the street. Officer Schultz followed, but was not readily able to locate [445]*445appellant. Officer Schultz called for backup help, then continued his search. One of the other officers summoned, John Yeager, followed footprints he spotted in the freshly-fallen snow. The prints led him to an apartment. He knocked on the door and was greeted by a white male and a white female. The female, Cecilia Valesquez, invited Officer Yeager in, and while inside the apartment, he noticed a plaid jacket. A search of the premises was conducted, and appellant was discovered locked inside a closet.

Jose Serrano, who identified appellant and testified against him at trial, first identified him in an out-of-court one-to-one confrontation at the preliminary hearing. Besides his encounter with appellant on the night of the offense, Mr. Serrano testified that he knew appellant from the neighborhood, but not by name. Appellant moved to suppress this identification, but his motion was denied by the court below. At trial, and in post-trial motions, appellant continued to take issue with the “suggestiveness” of the pre-trial identification. Appellant contends that Jose Serrano’s in-court identification of appellant was tainted by the “suggestive” pre-trial confrontation, and therefore, should have been ruled inadmissible.

Without deciding whether the preliminary hearing was unduly suggestive, we hold that there was sufficient evidence on the record to justify the finding of the lower court that the in-court identification arose from a source independent of the confrontation at the preliminary hearing. Given a suggestive out-of-court confrontation, an in-court identification is admissible if, considering the “totality of the circumstances,” Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the subsequent in-court identification arose from an origin “sufficiently distinguishable” from the illegal encounter as “to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); see Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Taylor, 472 Pa. 1, 370 A.2d 1197 (1977); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976); Commonwealth v. Diggs, 260 Pa. Super. 349, 394 A.2d 586 (1978).

[446]*446To determine the existence of this independent basis, the time honored criteria promulgated by our supreme court are:

“ ‘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.’ ” Commonwealth v. Fowler, supra, 466 Pa. at 206, 352 A.2d at 21, quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Of these factors, the opportunity of the witness to observe the defendant at the time of the incident is considered the most important. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Wilson, 450 Pa. 296, 301 A.2d 823 (1973); see Commonwealth v. Diggs, supra.

In the instant case, Jose Serrano testified that he recognized appellant (although he did not know his name) by seeing him in the neighborhood prior to the morning of the robbery. On the night of the robbery, appellant approached Mr. Serrano and asked him how he was doing and whether he had any drinking water available. Mr. Serrano directed appellant to the water fountain inside the office. While Mr. Serrano was preparing a receipt in the office, appellant came from behind him, put a gun in his side, and told him “give me the money or I shoot.” (N.T. 5.8). Appellant took the money and then shot Mr. Serrano. Mr. Serrano testified that the whole incident transpired over a span of fifteen minutes. In addition, Mr. Serrano, in court, identified appellant’s jacket as the same “sweater” appellant had worn during the robbery.

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Commonwealth v. Olivencia
402 A.2d 519 (Superior Court of Pennsylvania, 1979)

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Bluebook (online)
402 A.2d 519, 265 Pa. Super. 439, 1979 Pa. Super. LEXIS 2129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-olivencia-pasuperct-1979.