*1 Appellant. Commonwealth v. Jackson, *2 P. J., Before Weight, 1973. September Argued Spaeth, Watkins, Jacobs, Hoffman, Cercone, JJ. J., absent.) (Spaulding, *3 for refused 1974.
petition reargument May 9,
Before Pawelec, J., a jury. without him Vin- Packet, with Assistant Defender,
John W. Ziceardi, appellant. Defender, cent J. Garrett, District with Attorney, Assistant
James T. Assistant Ranney, M. Stein and James him Milton Attorneys, Specter, Arlen Attor- District and District ney, appellee. for Commonwealth, April J., 3, 1974:
Opinion Cercone, appeal by L. from his This an Thomas Jackson jury, of the crimes after trial without conviction, appellant urges burglary attempted burglary. The and grant of al- new on the basis this Court to him a trial leged suppression hearing.1 For the at errors made appellant’s deny on motion reasons enunciated belowwe burglary grant attempted but it as conviction, burglary conviction. simply are
The of the these. Some case, stated, facts January 1972, 1971 and 24, 2, time December between police had ob- a Mr. told the that he Alexander Johnson parked appellant Bell- into truck on served the break a Philadelphia tool This vue and remove a box. Street seeing appellant sight him on from informant knew neighborhood operated a informant where the re- auto mechanic’s also store. The owner tools ported occurred on December 1971. that the theft appellant of the and had lived near the scene crime burglary. previously On basis been arrested magistrate issued this information the warrant January appellant’s on 1972. residence search appellant’s police room searched When any day, they tools than to discover other same failed type open-ended that can found wrench appellant’s argument brief, part oral tbe 1A substantial auspices Philadelphia prepared Public Defender’s under scathing personal Office, attack and misconceived was devoted *4 hearing judge. suppression competency As the Public of the the on proper knows, is not forum to consider Court the this Defender well judges, we wish to state that qualifications of lower court argument wholly in an where unwarranted an attack find such we judge hearing simply committed error whether issue is rulings. his appellant’s The of the dresser most homes. search led to the revealed the wrench also dis- drawers which covery packaged proof-set in a of a collection of coins, gold pocket items and a manner, watch, distinctive previously of a the officer knew to be the fruits reported burglary Al- of the of a Prather. home Mr. though the he did seize wrench, officer did not seize the along identifi- the coins watch with stolen and the some gold of and coins cation cards. This evidence watch appellant’s trial the basis conviction at formed burglary of of the instant case for the residence a Mr. Carl Prather. custody appellant Prather
While the was burglary, Shirley picture from a Mrs. chose his Jackson array twenty-five photographs of fifteen to shown to police being her at the station that of the man as she briefly on had confronted after he broke in her door night January Although 1972. the record does apparently, charge burglary indicate, charge attempted burglary Prather residence and the for trial. On Jackson residence were consolidated testimony, her Mrs. Jackson’s identifica- burglary tion and evidence that a had occurred that evening building, appellant same in that same was attempted burglary the crime of convicted Jackson residence. argues appellant pro- first the evidence
The by premises suppressed duced must be search his fatally or either because the warrant was be- defective, extended to an area where the articles cause the search sought reasonably expected be found. could not disagree both conclusions. with We probable cause section the search warrant subject reads as “Above-named was seen follows: Ees. 2112 Bellvue Alexander Johnson, Street, N/N breaking yellow, Philadelphia li- into 67 Ford truck, removing box from 016843and a tool this vehicle cense *5 Informant and Bellvue Street. and walk 21st toward in neigh- from him the seeing male on sight knows this a The informant store. operates borhood where the stolen the po- taken were reported tools were who 2118 Bellvue Street lice by Walter, Logan N/N of in front 2111 Bellvue Street. had the truck parked from about a block and where The home is subject’s % The arrest subject has prior the theft occurred. burglary.” date of the the information concerning
Although of the war- date of the issuance crime and the alleged section, cause probable rant not included are on the face of specifically are set forth they clearly The affidavit the warrant. the affidavit supporting on De- was the crime of committed burglary states that on warrant was issued cember 1971 and January 2,1972. of a
The the affidavit warrant purpose support is probable to enable to determine whether magistrate crime exists. The requi- cause for commission forth for is- site information to be set affidavit of a warrant are: suance and address
(1) accused, Name Nature of (2) crime, crime to have been com- alleged Time the is
(3) mitted, The type information, concerning crime,
(4) is the affidavit predicated, upon which information The time such was received, (5) The date issuance warrant. (6) above, All set forth with requisites exception by of Item met the affidavit. The specifically were or not the time in- is whether dispositive question the crime was af- by received concerning formation set forth in the affi- though specifically fiant, even made out clear The sufficiently by implication. is davit, nine before the committed issuance days crime was information The must have necessarily the warrant. days. If received the affiant within those nine been suppose that information on the we was received day of the is- which is the time from the crime, remotest question to be is suance warrant, resolved days whether warrant issued nine later is defective because staleness. operative determining date for “staleness” *6 alleged
the date on which the crime oc is to have generally, Sgro curred. v. See, United 287 States, (1932), U.S. 206 100 A.L.R. 2d Annot, 68 Am. 525, (1973). 2d Jur. and §70 Searches Seizures deter mining lapse alleged whether the in time between the date the occurrence and the date issuance great longer probable the warrant is so no there is cause to believe that items to be seized are on the premises magistrate to be searched, must examine particular the facts and circumstances of be case fore him. Id. See also United v. 403 States Harris, Superior (1971); People U.S. 579 at n. 2 Court, Rptr. (1972); 6 3d Cal. 704, 100Cal. P. 2d 1183 (Tenn. App. Franklin v. 437 S.W. State, 2d 260 Crim. 1968). nothing There is in the affidavit from which magistrate, only obliged is who to exercise common sense, could determine that the tools were not at place days described the affidavit. Nine after the alleged assuming crime is to have been committed, day (at information was received on the a the crime nine-day period later time in the the time would shorter), long during course be not too which to issue a search and valid seizure warrant. We find therefore appellant’s no merit to the contention that the informa be tion stale because the considered warrant omitted the reported on date which Mr. Johnson the incident. acting police unreasonably Neither were the when they searched the dresser for the drawers stolen tools. police need assume not that the tools would be not admittedly from the box taken tool which could not fit relatively box itself was The tool in the drawers. aas significant not in itself one, wooden valueless could be stored they tools. Once stolen repository be that tools might likelihood and the in various places, the fact is underscored in the drawers found Generally, therein. find wrench did indeed the police all extend to parts may warrant under a search a search the items where in the warrant described premises See be found. reasonably expected sought may ~FTa.ll 261-62 Procedure Criminal Modem al., L. et de- warrants countless cases (1969). “[I]n a search the buildings, the land and only scribed has been per- and similar items closets cabinets, desks, and Seizures Am. 2d §111 Jur. Searches mitted.” rather commonplace to seize a In failing (1978). were they not indicate that did wrench, police Had the police tools. for the stolen in fact searching auto and other a set of ratchet wrenches also discovered all. them well have seized they may tools, mechanics did not argues police next The appellant *7 and circum exigent cause probable have sufficient first of the coins without their seizure justify to stances mere fact the say, a Needless warrant. obtaining facto, in did not, ipso were view plain the coins v. New Hamp See, e.g., Coolidge their seizure. justify Niro v. United 388 States, 443 (1971); 403 U.S. shire, 29 L. Ed. 2d 1968). Cir. See also (1st Annot., F. 2d 535 In instant case the officer specifi the 1074-1078. 1067, collection distin a coin with similar recalled that cally stolen and thus had had been reported features guishing coins stolen. for these were believing cause probable are were items which coins and watch Since circumstance or of, exigent disposed moved easily present. Furthermore, seizure was for their warrantless consider the appellant’s also properly the officer could probable cause, in determining reputation coin collection had been likelihood that the to the added
9 Reputation generally, in stolen. the Hole Note, See, Establishing Search, for Arrest and Probable Cause U.L.Q. 340-41and 352. 1969 339, Wash. argues showing appellant Mrs. Jack also appel layout illegal photographic
son the
since,
was
custody
being
he
entitled
lant
in
at the
was
time,
ap
argument
present.
support
of his
counsel
have
pellant
v.
Since the
Court was bound
by
Negri,
the doctrine Commonwealth v.
that United v. stands supra, States the available use rule.4 so as is Thus, long display the there no constitutional requirement defense, to be afforded the right that the custody suspect the Although following princi have present. counsel out that in this we ple appeal, point was raised States, Simmons United under the test established 390 U.S. the identifica testimony 384 377, (1968), tion photographic witness is suppressible only when as to layout procedure impermissibly suggestive is “so give rise to a substantial likelihood of very irreparable misidentification.” turn to the final
We now appellant’s argument failure the Commonwealth’s to produce photographic at the layout request by suppression hearing upon violated his to due law. rights We appellant process in the rejected decisions which have agree. Implicit Zeiler decision was assumption photo- that the defense reproduced would so graphic display at least be to attack the would position credibility of the identification witness’ or to testimony, have entire identification because testimony suppressed proce- nature of the impermissibly suggestive layout In the instant case the made police dure. no record of from a selection of photographs hundreds were Jackson. Unable to the layout shown Mrs. use itself, was left to reconstruct the procedure defense from police requiring presence suffer of counsel note suspect any event, chaos at the create would identification. each weight to the adds additional assertion that an this scenario ac- display reconstruction is the most or- curate way protect subsequent derly defendant from a and effective layout procedure. unrepresentative prejudicially virtually every jurisdiction Indeed, which has considered the rejected See, e.g., al., Hall Zeiler, it. L. et Modern Crim has decision 1973) (Supp. ; 194, n. c United States v. inal Procedure (1973). n. 2 2d at L. Ed. U.S. at
11 vague in- the a not astute recollections of witness tlie persuasion. since subtle Furthermore, tricacies photographs to de- the identification examines witness culprit than to termine which one resembles the rather many how bear it is obvious resemblance, determine no that under the would such circumstances defense’s task impossible. nearly be supra, provide does a different result
Simmons, not under the of the case. Simmons no re- facts instant quest production large number was made photographs until trial. The Court stated: “The defense surely photographs played role in knew the had that process. attempt no the identification Yet there was pictures produced prior the . have to trial. . . Moreover, strength eyewitness’ the Sim- identifications highly unlikely nonproduction renders mons it photographs any prejudice.”5 him In the the caused lay- only request did defense the case before not us, prior original out but confrontation between trial, appellant to a was not conducive witness and strong identification. Mrs. testified that she Jackson only immediately appellant for one after second saw by hallway. having a clamor in the been awakened While only face to the confrontation was source face, apartment from a in the darkened came illumination appellant. light She testi- above and behind also only probable it that she could have iden- fied that was picture. appellant had not seen his she tified we doubts that under these facts have serious While be will able show clear and Commonwealth convincing identi- Mrs. Jackson’s in-court evidence wholly independent photo- origin had an fication layout,6 remand the case for a trial graphic will new we question may hearing on this held. so that United, 5 States, U.S. at 388-389. Simmons hearing suppression the Commonwealth informed At photographic display reproduce the because could it court charge burglary The on the sentence judgment Bill of Indictment No. 291 is affirmed. burglary on the attempted of sentence judgment and the 292 is in Bill of Indictment No. vacated
charge trial. case remanded for a new in the result. concurs J., Hoffman, in the considera- did not J., participate Spaulding, tion or of this case. decision *10 pictures kept Jackson. shown to Mrs. were no record was of which hearing only question court Thus, for which remains origin independent identifi- for Mrs. Jackson’s whether there was an testimony. cation by Opinion
Concurring
J.:
Jacobs,
be
majority
by
reached
I
in the result
concur
of the Commonwealth
the failure
I
cause
believe
the suppression
at
layout
to
produce
due
to
rights
appellant’s
violated
hearing upon request
unneces
it
in
was
However, my opinion,
of law.
process
v. Whiting,
Commonwealth
consider whether
to
sary
919
400 U.S.
denied,
cert.
Concurring Spaeth, it con- so far as opinion Judge join I Cercone’s and room, of the search appellant’s validity cerns the because trial new necessity grant also as to to reproduce photo- failure the Commonwealth’s that United I however, do not agree, display. graphic
13 (1973), States v. 413 U.S. “stands the bet For ter rule.” reasons to be I believe that the stated, requirement imposed by once Commonwealth v. Whiting, Pa. denied, 266 A. 2d cert. (1970), Pennsylvania, U.S. 919 is the law of how not, by virtue of ever, of the United Sixth Amendment by States Constitution but of Article rather I, virtue Pennsylvania of the I §9, Constitution. nevertheless Judge reach the same result as does because in Cercone present photographic display case the occurred be prosecution right begun. Accordingly, fore the had yet to counsel had not attached. (1967),
In United States v.
it
Wade,
In v. Whiting, supra, Commonwealth concluded Wade reasoning Court reviewed at of counsel photographic that it the presence required cannot that “Wade It stated identification displays. pictures people by substituting be undercut simply ____” A. 2d at 740. Id. at 209, Court Supreme the United States
Recently, however,
displays.
to extend
to photographic
declined
Wade
held that
It
States v. Ash, supra.
expressly
United
to coun-
does
grant
right
“the
Amendment
Sixth
the Govern-
conducted
sel at
displays
to attempt
a witness
allowing
ment for the purpose
821. As
offender.”
Id. at
identification
from
it is clear
in his opinion,
indicates
Judge
Cercone
to be re-examined.
Ash that
will have
Whitmg
at the outset
In
be acknowledged
it must
doing so,
decision
much as the
the decision
as
Whiting,
of the Sixth
on an
Wade,
interpretation
is based
after
From
it
this
follows
Amendment.
an accurate
considered to be
“can no
longer
Whiting
Commonwealth
constitutional
law.”
federal
statement
925 (1973)
311 A. 2d
Claitt,
922,
v.
15
Const,
§9.
by
Pa.
art. I,
counsel.”
and his
himself
wording
provision
of
this
it is true that the
While
delinea
“[o]ur
of
Amendment,
similar to
Sixth
necessarily
right
circumscribed
of the
is not
tion
state
.”
by interpretation
. . .
Amendment]
[of the Sixth
Ray,
315 A. 2d
Pa.
n.4,
Commonwealth
43, 49,
announcing
(opinion by
(1974)
Pomeroy,
J.,
Court).
provision
holding
is that
of
The second
liberty, or
may
“deprived of
not be
his life,
accused
peers
property,
by
judgment
the law
or
unless
of his
Const,
“By
§9.
Taw
of
art.
the land.” Pa.
I,
Ap
process of
Palairet’s
is meant.
. . due
law.”
land’,
peal,
(1871).
counsel at a identification opinions helpful filed United consider several opinion supra. States v. The the Court was expressing the view filed Mr. Justice Blackmun, concurring justices. of five filed a Mr. Justice Stewart joined by opinion. Mr. Justice Mr. Justice Brennan, dissenting Douglas filed a and Mr. Justice Marshall, only opinion. Amend- issue was whether the Sixth guaranteed right to counsel at ment the defendant the display; post-indictment photographic identification argued Appeals in the the defendant had Court right process of due but he had such a as a matter as Appeals the Court of had found the record insufficient permit it decision was not considered issue, appeal Supreme on to the Court. opinions point departure
Each took as its guarantees premise Amendment that the Sixth right stages” at all “critical to counsel defendant defining prosecution. They differed, however, stages.” “critical opinion his the Court
Mr. Justice Blackmun defining stages” problem approached “critical *13 that the initially from an historical perspective. Noting of counsel extended only Sixth Amendment’s guarantee from the cases that it had to the he concluded trial, far to include such other only proceedings evolved so as characterized the criminal as were during prosecution “a trial-like confrontation.” United States v. A like supra at 314. involved corporeal lineup, Wade, was found a be such whereas confrontation, a identification found not to display was photographic be such a confrontation.
Mr. Justice each Justice Stewart and Mr. Brennan of approached “critical problem identifying stages” role of terms that saw emphasized counsel; they to counsel as right extending every stage of prosecution where counsel is presence necessary to ensure that the trial if is counsel is fair; necessary, is “critical.” The stage justices two how- differed, in their ever, appraisal necessity counsel’s at a identification presence display. After retrial stating “[p] are ‘criti- proceedings if the cal,’ then, counsel is presence essential ‘to pro- tect the of the trial fairness itself.’ Schneckloth v. Bus- 412 U.S. cf. tomonte, 218, Coleman 239; v. Alabama, 399 U.S. 27-28 United J., dissenting).” (Stewart, States Ash, supra at Mr. Justice con- Stewart a cluded that is not a photographic display “critical “It true stage”: defendant’s photograph may from different markedly others but displayed, can be this unfairness demonstrated at trial from an actual comparison used or from photographs witness’ description display. it is Similarly, pos- sible that could be photographs in a arranged sug- manner or that by comment or gestive gesture the prose- authorities cuting might single out the defendant’s pic- ture. But these are the kinds overt influence that can easily witness reconstruct and that would serve the identification impeach testimony. there short, suggestiveness possibilities and those for unfair are few Accordingly, easily reconstructed. rather blatant and from an effective not be foreclosed an accused would simply of an witness identification cross-examination display. present For at the counsel was not because his fairly photographic display be con- cannot this reason, prosecution.” stage’ Id. at 324- a ‘critical sidered 25. appraisal. this differed with Mr. Justice Brennan photographic identifications of all he noted that
First corporeal than iden- to be less accurate have been found photography. because of the limitations tifications *14 although “For Id. at He continued: retention 332. may mitigate dangers photographs of misiden- suggestiveness photographs tification due to the any in sense reveal to defense it cannot themselves, dangerous, more counsel the more and therefore subtle, suggestiveness might in from manner derive photographs displayed any or accom- which the were panying gestures. or accused can- comments Moreover, expose rely upon the themselves to these witnesses suggestion, are not latter for the witnesses sources ‘apt prejudicial to be alert for conditions to the sus- pect. supra] at 230.” Id. . . .’ States [United Wade, at 335.
Noting present that “the accused himself is not even thereby reducing photographic at the identification, irregularities procedure in the likelihood that will ever light,” id. at he concluded: the dif- “Thus, come reconstructing pho- at trial an ficulties of uncounseled equal tographic display possibly are least and to, at reconstructing greater in those involved an un- than, lineup. argued And in as Government counseled ‘[tjhere no in terms the need counsel, Wade, pretrial meaningful a witness’ difference between iden- photographs from and a similar identification tification lineup.’ For in both ‘the situations, made at a accused’s unfair- any to reconstruct at trial effectively inability may that occurred the [pretrial ness at identification] to at- him of his meaningfully deprive only opportunity identifica- tack courtroom credibility the witness’ As a tion.’ United at 231-232. Wade, States v. supra, identifications both result, corporeal photographic an innocent defendant dangers might create grave be inability expose because his convicted simply a tainted identification.” Id. at 336-338. role of
I one only add further consideration. one. at a is not a corporeal By counsel lineup passive and im- out that could suggestive pointing anything can client. Many counsel avert to his prejudice proper, in tes- presided trial have over cases judges objection to counsel’s disclosed that timony response initial at the station modified the lineup police in the lineup so that, example, persons house more all the or dressed nearly were same were height can a role at Counsel such clothing. similar play and his presence identification displays, at least at dis- necessary do so is as a photographic at a as play corporeal lineup. I
In have considering opinions the several my judg been Mr. Justice Brennan’s. persuaded his reality problems ment catches opinion *15 to an the other confront counsel at trial extent not. I therefore concluded do have opinions counsel in all criminal prosecutions guaran right Pennsylvania Article Constitution I, teed by §9, be held include the to have counsel right pres should disp identification ent at post-indictment photographic lay.* * right question do reach the whether I therefore process I,
guaranteed §9. due clause of Article