221 Pa. Super. 212 | Pa. Super. Ct. | 1972
Dissenting Opinion
Dissenting Opinion by
In this direct appeal, appellant attacks his conviction for robbery as being based in part upon unconstitutionally obtained identification evidence.
Miss Stevenson testified that when the police arrived at the scene after the robbery she deseiibed the robbers and stated that she thought she knew the two men who had committed the robbery. She named James Black and Ronald Hudson.
Acting upon this information, the police obtained a mug shot of James Black which was then inserted among five other mug shots. These six photographs were then shown by the police to Miss Stevenson and two other robbery victims, without counsel for Mr. Black being present. The mug shots of the persons shown other than James Black were not preserved, so that at the time of the suppression hearing below it was impossible to reconstruct the mug shot array in order to assess its fairness. Miss Stevenson and the two other victims identified appellant from the mug shots as being one of the robbers.
Seven days later, appellant was arrested. That night he was taken to a police station and placed in a lineup, where he was identified by all three victims.
Appellant argues that the mug shot identification by Miss Stevenson and the two other robbery victims should have been excluded at trial because appellant was denied his right to counsel and his right to due process at the identification proceedings.
I do not believe that appellant was denied a right to counsel at the mug shot identification by Miss Stevenson and the two other robbery victims. In United States v. Zeiler, 427 F. 2d 1305, 1307 (3rd Cir. 1970) [which is binding upon this Court pursuant to the doctrine set forth in Commonwealth v. Negri, 419 Pa. 117, 213 A. 2d 670 (1965),
The harder case, of course, occurs where a pre-custody mug shot array is shown to witnesses where the police have probable cause to arrest one of the persons whose picture is shown because they have reliable information that the suspect did in fact participate in the crime alleged.
This was the situation in United States ex rel. Hollman v. Rundle, 329 F. Supp. 1052 (E.D. Pa. 1971). In Hoilman the police had probable cause to arrest a suspect who conformed to a precise description of a robber furnished to the police by the victim of the robbery. After the suspect’s arrest, the police took his photograph and released him, as the “victim was not available for a prompt lineup identification while the suspect was in custody”. Subsequently, the suspect’s picture together with 11 other photographs of persons of the “same race and approximately the same age, weight and height as petitioner,” were shown to the victim who thereupon identified the suspect. 329 F. Supp. at 1056. This identification was introduced at trial and was one of the factors upon which the trial judge sitting without a jury found the defendant guilty.
The Court answered this contention as follows: “Somewhere between mere investigation and actual posecution, a line must be drawn where police investigations are not deemed critical stages requiring the State to provide legal counsel to be present to represent the suspect. Under the facts of this case, I hold that the pre-trial, pre-indictment photographic identification of Mr. Hollman while he was not in custody did not re quire the presence of counsel representing him at such identification procedure. It also must be considered that to require counsel to be present at all pre-indictment photographic identification procedures would be impractical and unmanageable; especially in situations where one is merely a suspect and nothing more, and his whereabouts is totally unknown to the police. How would the police proceed to obtain counsel for such a suspect?
“In. addition, if there is clear and convincing evidence that an in-court identification has a totally independent source from that of the pretrial identification by lineup or photograph, then irrespective of the validity of the pretrial proceeding, the in-court identification is admissible. Wade, supra, 388 U.S. 240, 87 S. Ct. 1926. The trial transcript in this case clearly establishes that the victim’s in-court identification was based on his persona] observations during the course of the robbery, and not the result of the photographic identification.”
This position is also consistent with the view expressed by Mr. Justice Harlan speaking for the Supreme Court in Simmons v. United States, 390 U.S. 377,
Simmons only dealt with a claim by the appellant that he had been denied due process in not having counsel present at the mug shot array identification. There was no contention that this was a denial of his sixth amendment right to counsel.
Counsel could not have been provided to the suspect in such circumstances since his whereabouts were not known. Therefore, I am not persuaded that the police were foreclosed from conducting the mug shot array identification on the basis that the missing suspect was entitled to counsel which could not be provided to him.
II
Appellant, however, argues that on due process grounds he was entitled to have the fairness of the mug shot array identification procedure determined by a court, and that the burden of proof in such matters is upon the Commonwealth.
In considering this claim it is fundamental that any unduly suggestive identification procedure is unconstitutional. Stovall v. Denno, 388 U.S. 293 (1967); Simmons v. United States, supra. At the suppression hearing below the police testified that six photographs had been used and that these photos were selected on the basis of exhibiting to the victims pictures of “people who [were] in the same age area” as appellant. No control records were kept of the mug shots used other than
The question of whether the Commonwealth has the burden of producing such photographs at the identification suppression hearing is an open one, specifically left undecided by Simmons. Simmons v. United States, 390 U.S. at 388 (footnote 9). The Commonwealth, however, did not in the instant case furnish any basis for a comparison of the characteristics of the appellant’s picture with those of the other persons whose pictures were shown to the victims. This might have been done if race, complexion, weight, facial scars, hair type had been noted. In the absence of such information, it is impossible to determine if the photographic array was unduly suggestive.
In such circumstances, therefore, it is advisable to hold that the Commonwealth has the burden of proof in demonstrating that the instant identification procedure was proper, as appellant clearly is foreclosed from proving a negative without evidence. The principle has been established in other cases that when a defendant raises a claim of constitutional dimension, the burden of proof with respect to the evidentiary basis of that claim rests on the Commonwealth, where the Commonwealth is in the position to establish the truth or falsity of the claim by evidence not in the control of the defendant. See Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A. 2d 434 (1968); Commonwealth v. Wilson, 430 Pa. 1, 241 A. 2d 760 (1968); and Commonwealth v. Henderson, 433 Pa. 585, 253 A. 2d 109 (1969).
The Commonwealth has not sustained its burden in the instant case with respect to the mug shot identifiea
In Commonwealth v. Negri, supra, our Supreme Court held that determinations by the Third Circuit of constitutional dimen
The identification in Simmons took place in 1964 and Wade not being retroactive, no denial of counsel claim could have been raised. Stovall v. Denno, 388 U.S. 293 (1967).
With respect to the burden of proof when a defendant raises a speedy trial claim compare Commonwealth v. Clark, 443 Pa. 318, 279 A. 2d 41 (1971), with Commonwealth v. Bunter, 445 Pa. 413, 282 A. 2d 705 (1971).
Lead Opinion
Opinion
Judgment of sentence affirmed.