466 A.2d 656 | Pa. Super. Ct. | 1983
The Commonwealth appeals from an order granting ap-pellee’s motion to suppress the identification testimony of an eyewitness. The trial court suppressed the evidence on the ground that it was “tainted by unduly suggestive police procedures” and lacked sufficient independent sources to render it admissible. We disagree and, therefore, reverse.
Initially we must determine whether the Commonwealth’s appeal is properly before us. Recently in Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), our Court engaged in an exhaustive discussion of prior case law in this area, and concluded “that an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution.” Id., 311 Pa.Superior Ct. at 270, 457 A.2d at 880. Using this standard, we find the suppression order in this case to be appealable. Appellee is charged with murder. The Commonwealth’s entire case against appellee rests on the identification testimony of James Wyatt, the only eyewitness to the crime. Consequently, any order suppressing his testimony would substantially handicap the. prosecution.
The facts underlying the appeal are as follows. In the early morning hours of September 19, 1980, Elbert Reaves was shot and killed as he sat in the front seat of an automobile parked on a deserted street in the three hundred
Appellee’s preliminary hearing was held on October 8, 1980. Wyatt testified at that hearing, but was unable to identify appellee and the charges were dismissed. In February of 1981, Wyatt met one of the investigating detectives in the Reaves’ murder on the street. Wyatt indicated to the detective that he was prepared to identify appellee as Reaves’ murderer in court, and that he had failed to identify appellee at the October 8, 1980, preliminary hearing only because he was frightened and unfamiliar with court proceedings. Appellee was thereafter rearrested, charged with Reaves’ murder, and bound over for trial. Prior to trial, appellee filed an omnibus pretrial motion wherein he sought to suppress certain statements he made to the police, along with other “improperly obtained physical and identification evidence.” After a hearing, the suppression court granted appellee’s motion with respect to certain oral statements made by him to the police, and with respect to the identification testimony of Wyatt.
On appeal, the Commonwealth makes three arguments:
I. Appellee waived his right to challenge Wyatt’s identification testimony by his failure to comply with Pa.R.Crim.P. 323(d);
II. The procedure employed with respect to the photographic array was not unduly suggestive;2
III. There were sufficient facts to establish an independent basis for Wyatt’s identification of appellee even if taint is presumed.
The Commonwealth’s first argument, not having been raised below, has been waived.
Our scope of review in this case is limited to determining whether the factual findings of the suppression court are supported by the record, and whether the legal
The suppression court’s legal conclusion that the photographic array shown to Wyatt on September 24, 1980, was “unduly suggestive” is based on the assumption that Wyatt’s identification of appellee was unfairly reinforced by the presence of Spruell’s dated signature on the back of appellee’s photograph. Although Wyatt had testified at the suppression hearing that he did not notice or see Spruell’s notations when he signed his own name and date on the back of appellee’s photograph, the suppression court discounted Wyatt's testimony in this regard and concluded that he had to have seen Spruell’s signature and date when he turned the photograph over. Nevertheless, it was undisputed that it was only after Wyatt had identified appellee as the murderer that he had the opportunity to see Spruell’s notations. It was also undisputed that in all other respects the photographic array was fair.
While the presence of Spruell’s signature and date on the back of appellee’s photograph may have reinforced Wyatt’s identification of appellee, that possibility alone did not render the photographic array “unduly suggestive.” Factors to be considered when evaluating the suggestiveness of an identification procedure include: 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 confrontation; and the length of time between the crime and the confrontation. Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979). An evaluation of the above criteria in conjunction with the record in this case convinces us that the totality of the circumstances surrounding Wyatt’s identification of appellee at the photographic array assured that it was reliable and not the product of suggestion.
Although the Commonwealth does not challenge the suppression court’s second conclusion, i.e. that Wyatt’s
Having determined that no unduly suggestive police procedures occurred which tainted Wyatt’s identification testimony, we need not reach the question of whether there was a sufficient independent basis for Wyatt’s identification of appellee.
Order reversed. Case remanded.
Jurisdiction is relinquished.
WIEAND, J., concurred in the result.
. In perfecting this appeal, the Commonwealth has only pursued the suppression of Wyatt’s identification testimony.
. The Commonwealth does not challenge on appeal the suppression court’s conclusion that the meeting between Wyatt and the detective in February of 1981 tainted Wyatt’s identification of appellee. See discussion, infra, for resolution of this issue.