Commonwealth v. Fulmore
25 A.3d 340
Pa. Super. Ct.2011Background
- Commonwealth appeals two suppression orders regarding identification of Fulmore and Kingwood in the June 30, 2008 Philadelphia shooting.
- Hernandez identified Kingwood and Fulmore from a photo array at Temple Hospital; later in-court identification followed.
- Detective Harrigan created two eight-photo arrays; Hernandez selected one photo from each array identifying Kingwood and Fulmore.
- May 20, 2009 suppression order suppressed the out-of-court photo identifications; October 27, 2009 suppressed the in-court identification.
- Appeal proceeded under Pa.R.A.P. 311(d) with argument that the two suppression orders were interdependent and should be reviewed together; standard of review limits appellate interference with suppression rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the out-of-court photographic identifications unduly suggestive? | Commonwealth: eight photos were substantially similar; no undue suggestiveness. | Fulmore/Kingwood: the array was unduly suggestive because of procedural cues and deviations from descriptions. | No; the photo array was not unduly suggestive; the identification was admissible. |
| Did the in-court identification lack independent basis or remain tainted by pre-trial identifications? | Commonwealth: independent basis existed for in-court identifications. | Identifications tainted by suggestive pre-trial procedures. | Not necessary to reach independently; reversal of photo identifications implies in-court identifications may proceed. |
Key Cases Cited
- Commonwealth v. Foglia, 979 A.2d 357 (Pa.Super. 2009) (standard for reviewing suppression and identification issues)
- Commonwealth v. Kubis, 978 A.2d 391 (Pa.Super. 2009) (not unduly suggestive where array features are reasonably similar)
- Commonwealth v. Kyle, 533 A.2d 132 (Pa.Super. 1987) (credibility vs. undue suggestiveness in photo arrays)
- In re Love, 435 Pa.Super. 555, 646 A.2d 1233 (Pa.Super. 1994) (no merit to argument that identification was unduly suggestive when photos diverged from description)
- Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (Pa. 2001) (photo arrays not unduly suggestive if differences are not remarkable)