Commonwealth v. Williams

13 Pa. D. & C.3d 731, 1979 Pa. Dist. & Cnty. Dec. LEXIS 108
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedMarch 26, 1979
Docketno. 1425-78
StatusPublished

This text of 13 Pa. D. & C.3d 731 (Commonwealth v. Williams) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Williams, 13 Pa. D. & C.3d 731, 1979 Pa. Dist. & Cnty. Dec. LEXIS 108 (Pa. Super. Ct. 1979).

Opinion

LOWE, P.J.,

This appeal stems from a March 24, 1978 robbery of the S. S. Kresge Store in the Cheltenham Shopping Center. On that Friday afternoon between 4:00 and 4:30 Bernadine Vaughn was in the course of her employment as a cashier at this store. A man in line at Ms. Vaughn’s check-out counter approached her as she finished helping a customer and told her to lift up the tray in [733]*733the cash drawer of her register.1 Ms. Vaughn immediately closed the register. The unknown man then opened his jacket and displayed a handgun contained in a shoulder holster. He repeated his order for her to lift the cash drawer and warned that if she did not, he would blow her brains out. Bernadine Vaughn complied with the man’s directions. The robber then reached across the counter, scooped up $981 which had been deposited in the drawer, stuffed them in his pocket, and fled.

The young cashier immediately summoned helped by ringing a service bell and calling “Robbery.” When James Williams, the store’s assistant manager, arrived at Ms. Vaughn’s check-out booth, she told him to follow the man in the brown leather jacket. Williams dashed from the store and instantly spotted a man attired as Ms. Vaughn had described. The suspect turned, realized he was being followed, and began to run. Williams gave chase and followed this man to a parking lot where the suspect felon entered what was later described as a white luxury-type automobile. Once inside the vehicle, the suspect turned and brandished his handgun at Williams who ducked behind a parked vehicle. Williams was able to observe the number and background color of the license plate.

The automobile was subsequently traced by the police through the license number recorded by James Williams. It was determined that the vehicle was owned by the Hertz Corporation franchise lo[734]*734cated at the Marriott Motor Lodge on City Line Avenue in Lower Merion Township, this county. The vehicle in question had been rented by defendant, Donald Williams, on March 23, 1978, and returned to the agency on March 27, 1978.

Donald Williams, a cook at the Marriott Motor Lodge, was arrested March 31, 1978, and charged with robbery, theft, assault, recklessly endangering another, terroristic threats, possession of an offensive weapon, and violation of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. §6101 et seq. At the conclusion of the preliminary hearing convened April 10,1978, defendant was bound over for trial. Verdicts of guilty of robbery, theft of movable property, terroristic threats, and possession of a weapon with intent were received and recorded October 24, 1978.

Following the filing of and argument on post-verdict motions, a pre-sentence investigation report was ordered. On February 6, 1979, defendant was sentenced on the robbery charge to undergo a term of imprisonment of not less than six years nor more than twelve years, such sentence to run consecutive to any sentence being served or to be served. On the possession of an instrument of crime with intent charge, defendant was placed on five years county probation to begin upon his discharge from custody. He was also ordered to make restitution in the sum of $981 to S. S. Kresge, payable in the first three years of the probationary period, and to pay a fine of $500 as well as the costs of prosecution within the first three years of probation. Sentence was suspended on the theft and terroristic threats charges.

The first assignment of error concerns the allowance of the in-court identification of Donald Wil[735]*735liams by Bernadine Vaughn. Defendant argues that because the cashier’s previous identifications of him2 were ruled inadmissible at the suppression hearing, her subsequent in-court identification should not have been permitted. Presumably, defendant takes the position that this later identification was tainted by the previous improper photographic display and confrontation. This contention is meritless.

A witness will be permitted to make an in-court identification under circumstances of this variety if it can be demonstrated this identification has an independent origin rendering it free of any taint of the suggestive pre-trial procedures: Com. v. Rodgers, 472 Pa. 435, 372 A. 2d 771 (1977); Com. v. Pemberton, 256 Pa. Superior Ct. 297, 389 A. 2d 1132 (1978); Com. v. Wareham, 251 Pa. Superior Ct. 130, 380 A. 2d 412 (1977); Com. v. Holz, 245 Pa. Superior Ct. 376, 369 A. 2d 452 (1976).

In other words, the test to be applied when determining whether or not the testimony of a witness identifying an accused is admissible is whether “. . . granting [the] establishment of the primary illegality, the evidence to which the instant objection is made has been come at by the exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Com. v. Connolly, 478 Pa. 117, 121, 385 A. 2d 342 (1978) (citations omitted).

[736]*736The Commonwealth is not required to prove the independent basis of the testimony beyond a reasonable doubt; rather, it need only be established by clear and convincing evidence: Com. v. Pemberton, supra; Com. v. Cox, 466 Pa. 582, 353 A. 2d 844 (1976). In order to prove an independent basis it must be demonstrated at a suppression hearing that the witness’s proposed trial identification “will be reliably based on the witness’s observation at the time of the crime, and that the identification was not induced by events occurring between the witness’s observations at the time of the crime and the witness’s in-court identification.” Com. v. Fowler, 466 Pa. 198, 204, 352 A. 2d 17 (1976). See also Com. v. Potter, 478 Pa. 251, 386 A. 2d 918 (1978); and Com. v. Rodgers, supra.

The independent basis of Bernadine Vaughn’s identification was sufficiently established at the suppression hearing. At that time it was found as a matter offactthatMs. Vaughn was ayoung, bright, high school graduate; she had good eyes and did not wear eyeglasses. She had a full view of this defendant at the time of the robbery from two or three feet for a period of time which she estimated at approximately two minutes. The site where this identification was made was well illuminated by fluorescent fighting and by the sunlight admitted through 12 foot high windows which comprised a wall located no more than 12 feet immediately in front of her check-out counter. The description which she had given of her assailant was quite accurate despite a few minor discrepancies. She had never failed to identify this defendant when she had been confronted with him. The in-court identification of Bernadine Vaughn was properly admitted.

Another ground on which this appeal is predi[737]*737cated is the supposed error of the court in denying defendant’s motion for discovery. This motion requested the court to order the Commonwealth to supply the defense all written, recorded, or oral statements of the Commonwealth’s eyewitnesses.

Pre-trial discovery and inspection procedures are governed by Pa.R.Crim.P. 305. This rule does not authorize unlimited pre-trial discovery, but, rather, differentiates between information which thé Commonwealth is mandatorily required to divulge and that which it may be required to disclose. Rule 305B(2)(b) provides that statements of the Commonwealth’s eyewitnesses are the type of evidence which may be revealed to defendant’s attorney prior to trial. The grant or denial of such a request is vested in the discretion of the court.

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Related

Coleman v. Alabama
399 U.S. 1 (Supreme Court, 1970)
Commonwealth v. McFarland
382 A.2d 465 (Superior Court of Pennsylvania, 1977)
Commonwealth v. Rodgers
372 A.2d 771 (Supreme Court of Pennsylvania, 1977)
Commonwealth v. Rines
372 A.2d 901 (Superior Court of Pennsylvania, 1977)
Commonwealth v. Connolly
385 A.2d 1342 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Wareham
380 A.2d 412 (Superior Court of Pennsylvania, 1977)
Commonwealth v. Holz
369 A.2d 452 (Superior Court of Pennsylvania, 1976)
Commonwealth v. Potter
386 A.2d 918 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Cox
353 A.2d 844 (Supreme Court of Pennsylvania, 1976)
Commonwealth v. Redshaw
323 A.2d 92 (Superior Court of Pennsylvania, 1974)
Commonwealth v. Pemberton
389 A.2d 1132 (Superior Court of Pennsylvania, 1978)
Commonwealth v. Fowler
352 A.2d 17 (Supreme Court of Pennsylvania, 1976)
Commonwealth v. Gartner
381 A.2d 114 (Supreme Court of Pennsylvania, 1977)
Commonwealth v. Gwyn
295 A.2d 73 (Supreme Court of Pennsylvania, 1972)
L. Beinhauer & Son Co. v. State Board of Funeral Directors
385 A.2d 342 (Supreme Court of Pennsylvania, 1978)

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Bluebook (online)
13 Pa. D. & C.3d 731, 1979 Pa. Dist. & Cnty. Dec. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-williams-pactcomplmontgo-1979.