Com. v. Harris, D., 2036 MDA 2015

On August 14, 2014 a confidential informant (CI) arranged a controlled purchase of crack cocaine; she entered the back seat of a red vehicle driven by Harris and received drugs from co-defendant Askew after handing Harris $300 from police funds.
After the buy, police followed Harris’s vehicle; Harris fled from marked police lights, crashed, ran, and was arrested after a foot chase.
The CI failed to identify Harris in an eight-photo array, but later positively identified him at the preliminary hearing where Harris was handcuffed and wearing an orange jumpsuit sitting beside his co-defendant.
Harris moved pretrial to suppress the CI’s in-court identification as unduly suggestive; the suppression court denied the motion and the trial court allowed the CI to identify Harris at trial.
A jury convicted Harris of PWID, delivery, criminal use of communication facility, fleeing/eluding, possession, and conspiracy; he received an aggregate sentence of 36 to 72 months and appealed only the identification/suppression ruling.
The Superior Court reviewed the suppression ruling and affirmed, concluding the preliminary-hearing identification was not so suggestive as to irreparably taint the in-court identification and that the in-court ID had an independent basis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the CI’s in-court identification should have been precluded because the preliminary-hearing identification (Harris handcuffed and in an orange jumpsuit) was unduly suggestive	Appellant: the CI’s preliminary-hearing ID was tainted by suggestiveness (handcuffs/jumpsuit/placement) after failing to ID in a photo array; thus in-court ID must be suppressed and a new trial ordered	Commonwealth: although the array produced no ID, the CI’s opportunity to view Harris (including profile), her description, prompt confrontation, and certainty support reliability; any suggestiveness did not irreparably taint the ID	Court affirmed denial of suppression: under totality of circumstances the in-court ID had an independent, reliable basis and was not irreparably tainted

Commonwealth v. Kearney, 92 A.3d 51 (Pa.Super.2014) (sets factors for evaluating reliability of identifications and warns that prompt one-on-one IDs are not inherently irreparably suggestive)
Commonwealth v. Kendricks, 30 A.3d 499 (Pa.Super.2011) (explains standard for when an in-court ID can stand despite a suggestive out-of-court ID if an independent basis exists)
Commonwealth v. Davis, 17 A.3d 390 (Pa.Super.2011) (Commonwealth must prove independent basis for in-court ID by clear and convincing evidence)
Commonwealth v. Cauley, 10 A.3d 321 (Pa.Super.2010) (standard of review for denial of suppression motions)