*1
Submitted 1976. April Decided *3 Packel, John W. Assistant Defender, Public and Benjamin Lerner, Defender, for Philadelphia, appellant. H.
Steven Goldblatt and Glass, Deborah E. Assistant Dis- trict F. Attorneys and Emmett Fitzpatrick, District Attor- ney, for Philadelphia, Commonwealth, appellee. WATKINS,
Before President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, President Judge: appeal
This arises from sentences imposed on appellant following verdicts jury him finding guilty assault and battery, aggravated assault and battery, and two counts of aggravated Four robbery. issues have been preserved for review: lengthy delay trial; bringing appellant to refusal to suppress identification of appellant; refusal to permit impeachment of a Commonwealth witness by use of рrior statements; inconsistent and admission of evidence of appel- lant’s criminal prior activities. For the reasons that follow, we affirm the judgment the lower court.
A. TRIAL SPEEDY *4 27, 1972,
On November
appellant and another were
arrested for
robbery
gas
two
stations. During the inves
tigation of these charges, evidence was discovered linking
the suspects to two prior robberies, on
23, 1972,
November
and they were
with
charged
those offenses. At a prelimi
nary hearing
22,
held December
1972, the prior robberies
were severed at appellant’s
and
request,
the two defendants
were tried for the
station
gas
robberies. The prior trial
17, 1973,
concluded on May
at which time appellant request-
that the
be held in
remaining charges
abeyance
ed
pending
for his
of counsel
co-defendant. Counsel was
appointment
11, 1975,
13,
until March
not
but on December
appointed
1974,
moved to dismiss the indictments
against
his right
him on the basis that
to a
trial had been
speedy
1975,
31,
violated. The court denied
motion on January
time,
the case was continued at that
and a suppression
17,
The
held on
motion to
was
hearing
April
suppress
denied,
21, 1975,trial
and on
was held before the court
April
Appellant
guilty,
below and a
found
jury.
post-verdict
denied,
motions were
and sentence was imposed.
1100,
arrest antedates Pa.R.Crim.P.
we
appellant’s
Since
trial claim within
speedy
must evaluate his
the framework
514,
2182,
of Barker v.
407 U.S.
92 S.Ct.
Wingo,
L.Ed.2d
(1972).
Barker,
our
adopted by
Supreme Court in
Hamilton,
v.
Pa.
The second close requires that appellant we note is scrutiny. Initially, responsible for six months of the from the time of arrest delay to the trial, as the result conclusion of the of his prior request two of the be severed. charges Additionally, May, appellant requested prеsent charges be held in of new abeyance appointment counsel for his pending co-de- counsel did not Original fendant. co-defense withdraw until 11, 1975, March at which new counsel time was appointed. While most of this could period delay arguably be attrib- it utable to we at most as a neutral appellant, regard cause
97 Barker delay. See v. Wingo, U.S. 92 S.Ct. from the time Finally, appellant moved to dismiss the held, indictments until trial was less than four months elapsed. Even if we were to conclude that the Common wealth is for this responsible last we delay, would not hold the delay alone, unreasonable on this basis in particularly of the light facts that the Commonwealth was to prepared all four try robberies in May, and there is no evidenсe of the any delay was a tactic on the part of the prosecution to prejudice appellant’s defense. See Common wealth v. Coffey, 49, 54, 230 Pa.Super. (1974). A.2d 829
The third of the part balance is the defendant’s failure to assert promptly right his to a trial. speedy Appellant here failed to assert his rights months, for 25 he although made two requests to dismiss the pending indictments him, we note against that he at no time requested that he be brought to trial. This factor weighs heavily against appel- lant in light fact he has some to responsibility assert a claim, trial speedy and the fact that “failure to assert the will make it right difficult for a defendant to prove he was denied a trial.” speedy Barker v. Wingo, U.S. at 532, 92 at 2193. S.Ct.
«The final factor to be weighed the balance is the prejudice suffered by defendant as the result of the delay. Appellant asserts here that the prejudice caused by twofold, is delay in that he was prevented from present- witnesses to ing describe the scene of the arrest because of time, lapse and he suffered oppressive pretrial incar- ceration. trial,
At
appellant attempted to present witnesses to
describe the scene of
arrest,
and the court refused to
admit their testimony, holding that any
attempt
describe
the area as it presently exists is irrelevant
if it does not
coincide with the description at the time of arrest. This
was a correct
ruling
statement of the law. See Common
DelMarmol,
wealth v.
206 Pa.Super.
519,
the fact *6 essence, In causa- arrest and trial. between delay ordinary the alleged impair- in this case and delay tion between proved. has not been defense appellant’s ment in his claim of prejudice the additional raises Appellant oppressive pretrial undue and he suffered assertion for an opportunity lost the incarceration, irretrievably and 575, 21 89 S.Ct. v. 393 U.S. Hooey, Smith parole. earlier trial court that We with the agree (1969). L.Ed.2d or as anxiety oppression no undue suffered appellant the fact that trial, considering in this delay result of sentence for the gas his begin prior was not to appellant of four to he sentence prior until served robberies station addition, any we regard charge. on still another six years in this to be respect by appellant suffered prejudice possible Pa. Bailey, minimal. See (1975). A.2d 869 case, in this lengthy delay was a relatively there
Although either caused by that much of it was we are persuaded Moreover, appel- of a neutral cause. the result or the 29-month period, his for 25 of rights to assert lant failed minimal prejudice more than demonstrate failed to and we hold that appel- delay. Consequently, from resulting to a right speedy of his constitutional not deprived lant was trial. IDENTIFICATION OF
B. SUPPRESSION the court below erred contends next Appellant hearing identifi- lineup preliminary suppress refusing arrest. It is the result of an as cations obtained made originally here that this motion to note important held before hearing appellant’s suppression 1973at a May, robberies, and denied by Judge station gas trial for prior trial held before on suppression hearing At the SHIOMOS. refused to allow GUARINO Judge charges, the present the arrest. In all fairness to legality relitigation as conclusions SHIOMOS’ Judge we deem appellant, in Judge GUARINO’s incorporated the arrest legality will therefore review findings, the arrest and identifica- juncture. tions
At about 4:15 a. m. on 27,.1972, November officer Theo- W. Black of the dore Philadelphia police was patrolling 93rd District he when received a series оf radio calls inform- him ing that a station gas robbery just occurred, had involv- two males ing Negro driving a brown Cadillac. Further robbers,1 radio information described the and stated that the pursued wrecked, vehicle had been and the two suspects were being pursued on foot. Officer Black proceeded to the chase, scene of the and near the area male, observed a Negro who appellant, appeared to fit one of the radio descrip- tions. Black stopped appellant name; and asked his appel- *7 lant responded: “Robert Jones.” time, At that the officer noticed a in large bulge appellant’s pocket, and proceeded to search him. The search revеaled a large roll of paper money, Black whereupon checked the name “Robert Jones” over police radio and was directed to bring appellant in for investigation. Appellant was then taken to the area of the wreck in a police wagon, and from there to the scene of the crime. The gas station owner was unable to make an identification, and appellant was thereupon transported to police headquarters. While appellant was being processed, the police received information implicating appellant two robberies, other and decided to conduct a At lineup. lineup, appellant was identified one of by the рrior robbery victims. Later at a preliminary hearing held on December 22, 1972, both victims of prior robberies appellant identified as the These perpetrator. identifications are presently be- fore us.
The initial question for our determination is the
legality of the arrest. The description given Officer Black
was that one of the robbers had a dark complexion, was
tall,
about 5'8"
and wore a black coat. Although the officer
testified that appellant fit this meager description, and was
we
walking quickly,
are not satisfied that these circumstanc-
males,
Negro
5'7", dark,
1.
wearing
Two
earring;
one
an
the other
5'8",
dark,
wearing
about
and also
and
p.
a dark coat. N.T.S.H.
125.
See, e.
cause.
Com
probable
g.,
es constituted sufficient
455,
Richards,
(1974).
v.
Pa.
MENT Appellant next contends trial court erred in refusing to direct the court stenographer read prior statements by made oath, Commonwealth witness under for the purpose impeaching witness by prior inconsist- ent statements.
At the pretrial suppression hearing before Judge GUARI- NO, Detective West was questioned about the composition of the lineup, and testified as follows: *9 able, you through Were when looked you
MS. CHRISTIE: the to see of any рart at the glass line-up participants, that. below their waist—strike participants bodies of the through when looked you glass I should Detective say, any were able to see you the line-up participants, at were participants these which body of the of portions of the table? below the level .” if at . . N.T.S.H. WEST: Little all DETECTIVE 157-158. pp. further,
And Did have occasion to note of the any you MS. CHRISTIE: through in the at time looked lineup you participants was contemporaneously which indicated you’ve the screen their faced—the legs with sides complainant, with the facing their screen? legs my knowledge, Not to no. DETECTIVE WEST: fact, did a matter of have you As MS. CHRISTIE: what direction the front of the note at all in occasion to were participants facing? officer legs police I no No wouldn’t—would have DETECTIVE WEST: rea- to. son fact, a matter of did have you As
MS. CHRISTIE: or not you any at all whether could see occasion to note officer’s trousers? stripes police on at looking legs, WEST: I wasn’t even his DETECTIVE 161-162. pp. N.T.S.H. anybody’s.” what trial, again was asked portion At Detective West in the he could see below the table. lineup participants Trial, N.T. p. “None.” He answered: between these state inconsistency We discern no committed no ments, judge hold that trial and therefore De impeachment. the attempted to allow refusing error both same on testimony substantially West’s tective use occasions, impeachment by prior thereby precluding A mere between the dissimilarity statement. inconsistent suffice; will testimony and the not present statement prior In re inconsistency. a substantial See Silver there must be 107, 117, (1974). A.2d 106 berg, Pa. *10 ACTIVITY CRIMINAL
D. RADIO CALLS—PRIOR error contains the final Appellant’s assignment evi presented improperly that the Commonwealth claim activities, by repeated criminal prior of appellant’s dence the police during pur to radio calls broadcast to reference The arises from the fact that problem appellant. suit of tried in this case for the Novem being was appellant while robberies, calls at issue were the result of the radio ber 23 compelled on November 27. We are that occurred robberies however, in the that references judge, with the trial agree сalls in no criminal way implied prior to these radio record not consequently prejudice and did activity by appellant, the jury.2 him before
Moreover,
as to the radio
persuaded
testimony
we are
or admitted to
the truth of
prove
was not offered
broadcasts
mental state of the
broadcasts, but rather to show the
course of conduct. Under these
their
police
explain
v.
circumstances, we find no error. See Commonwealth
215, 219,
(1973);
Pa.
HOFFMAN, J., in which dissenting opinion files a SPAETH, J., joins.
SPAETH, J., a in which HOFF- dissenting opinion files J., MAN, joins.
WATKINS,
President
did not
Judge,
participate
former
of this case.
or decision
consideratiоn
activity
prior
2.
trial court noted one reference to
criminal
when
The
Avenue,
inadvertently
holdup
referred to a
at Vare
Officer Cheatham
agree
gas
robberies. We nevertheless
with
the scene of the
station
testimony
spontaneous
judge’s characterization
of this
as a
the trial
Bunch,
slip,
v.
and no basis for a new trial. Commonwealth
454 Pa.
Furthermore,
(1973).
Second, Garvin, premises its doctrine of hastened confron-
tation,
Hoffman,
v.
part, upon United Stаtes
establishes the existence of an independent source which would have inevitably led to the defendant’s arrest.
Our Court has also subscribed to a narrow
reading
Garvin. In
v. Nicholson,
Commonwealth
Finally, would immunize of Garvin interpretation broad ty’s overly and wholesale intru judicial protection impermissible from citizenry. of our the constitutional See rights sions on I, IV; Pa.Const. Art. 8. Common U.S.Const., amend. § Brown, to the alleged instructs us assess supra, wealth v. in illegal policies from an arrest emanating light taint “Restated, where the the rule: exclusionary which underlie would illegal police activity as a result of evidence obtained conducted lawfully in the course of have been discovered the no is served in exclusion purpose applying investigation, 631. The 470 Pa. 368 A.2d at supra rule.” ary interests protected subverts the analysis privacy Majority's unlawful encourages police the rule by exclusionary the the benefit of permitting police reap practices by conclusion, its the Majori illegal logical acts. Extended authorize arrests with dragnet of Garvin would ty’s reading the of innocent subsequent parading cause and probable out the victim. The refuses to im Majority individuals before sanction, exclusion of the identification testi the pose only blatantly such effectively illegal which could deter mony, police procedures. Dissenting Opinion аrgued in in I I Nicholson which that the filed a testimony suppressed. I have been noted should not co-defendant’s my much the had as likelihood belief that established as the the eventual arrest Commonwealth estab- of co-defendant’s example, eyewitness For the testified he had a lished in Garvin. good opportunity the that he to observe co-defendant and had seen neighborhood since the time of several times the co-defendant fact, mother’s the co-defendant resided in his home the incident. only the scene of the crime. two blocks from
In conclusion, I would interpret Garvin and its as progeny requiring Commonwealth to establish a source of infor mation independent arrest which could have led eventually to a defendant’s legal arrest subsequent identification. I hold that would presumption inevita ble relied apprehension upon by cannot Majority serve as a substitute for this independent source. If the Common wealth fails to demonstrate such an independent source, the been identification has not purged primary its illegality. case, In the instant record does not reveal any evidence supporting the existence of an source independent of infor mation which could have ultimately resulted appellant’s *****7 arrest.1 Accordingly, lower court should have sup pressed identification testimony.
SPAETH, J., in this joins dissenting opinion.
SPAETH, Judge, dissenting: I think was denied a trial. speedy Appellant’s for request severance did not preclude the Commonwealth from trial listing case for shortly after *16 the conclusion of the trial of the case other in May, 1973. Instead the Commonwealth did nothing for almost two listing this case in years, finally March, for trial The “While most of this majority says: period of delay almost two could be years] arguably attributable to [the appellant, we it at regard most as a neutral cause of delay.” at 96-97. causes of are not delay “neutral” in the “[N]eutral” sense neither weighing against government the nor defendant; the against the they weigh against government. 514, Thus Barker v. Wingo, U.S. S.Ct. L.Ed.2d 101 the (1972), Court said: to
Closely length related is the delay reason the dif- government to the assigns justify delay. Here, too, police getaway 7. While the search the did stolen car which had been chase, during police connecting wrecked appellant the the found no evidence ultimately to which the crime would have led to his arrest.
Ill A to different reasons. assigned be should weights ferent to hamper the trial order delay attempt deliberate the against govern- be weighed heavily defense should the such A more neutral reason ment. omitted.] [Footnote weighed courts should be or overcrowded negligence as since should be considered but nevertheless heavily less must for such circumstances ultimate responsibility the with the defendant. rather than government rest with at 2192. 92 S.Ct. Id. . could delay
Neither do I that “most agree [the] Either appellant.” appellant’s attributable to be arguably for the co-defendant new be appointed that cоunsel request not The does majority or unwarranted. was warranted war- unwarranted. Given a that the was request suggest to see it the government’s responsibility was request, ranted granted, granted reasonably promptly. that it was it finds in the support majority what I do not understand not withdraw that co-defense counsel did “[o]riginal fact at 96. Why, then, 1975.” did March not the until once, shortly to trial at after proceed the answer is that the Common- trial in 1973? If May, first on co-defense counsel original belonged did not think wealth case, then, was new counsel as appointed, not why, these are an- However requested? questions had appellant swered, character- delay, is that the whether the conclusion not, to the only was attributable Com- ized as “neutral” or monwealth, be it. weighed against and must prejudiced by that not majority says
The
only
at 97.
I can
delay,
say
majority’s
the opposite
of the case leads me to
own statement
conclu-
acknowledges, “appellant attempted
As
majority
sion.
arrest,
witnesses to describe the scene of
to present
testimony, holding
any
their
the court refused to admit
*17
itas
exists is irrele-
presently
to describe the area
attempt
it
not
with the
the time
description
vant if
coincide
does
the delay, appellant
Because of
Precisely:
arrest.” Id.
witnesses.
presenting
from
precluded
was
In Barker v. Wingo, supra, the Court
just
considered
this
situation. After identifying the various
a ways
defendant
be
might
prejudiced by
to wait
having
trial,
for his
Court said that the “most serious” was “the
possibility
the defense will be impaired.”
532,
Id. at
[T]he his case skews the fairness of the entire If system. witnesses die or disappear a during delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of however, memory, is not always reflected in the record because what has been forgotten can rarely be shown. Id. The however, majority says, it is “not persuaded” that appellant’s witnesses would have been allowed to testi- fy had there been an only “ordinary delay between arrest and trial.” at 97-98. Why the is majority not persuaded, it does not sаy. most cases where there has only been ordinary delay witnesses are allowed to it testify; is only cases of extended delay, one, such as this where they may not be.
Finally, the majority says that “[ajppellant here failed to assert his rights for 25 months . . . .” at 97. I submit, this is not an accurate statement.
I assume the majority computes 25 months count- by ing 27, 1972, from November when appellant arrested, was December when he moved to dismiss the indict- ments on the ground denial of speedy trial. The trial on the first of the two severed cases was held in May, It cannot be maintained that during the 5 or 6 months from December, 1972, to May, appellant “failed to assert” trial; his to a right he speedy getting trial. speedy Thus, the majority’s months must be reduced to 19 or 20 months.
Nor can evеn period of 19 or 20 months be all counted against appellant. As has been discussed, it was the Com- *18 monwealth’s to move the case to trial. obligation Conse- assume, was entitled to for at quently, appellant least some time, that the period doing Commonwealth was what it will supposed Opinions do. differ. For I myself, should be it unwilling against hold defendant that he months, perhaps waited even before he wondered when trial, his case would come to and started to press for trial. Thus of the 25 I months should delay, weigh against appel- lant about only 10 to months. it is Surely not fair to all of it him weigh against as the majority does.
The judgment vacated, of sentence should be and appel- lant discharged.
HOFFMAN, J., in this joins as well as opinion filing a separate dissenting opinion.
SCIENTIFIC William Receiver of Inc., Living, Scientific Cornell Hohensee and Mrs. Cornell Hohensee.
Appeal of Mr. and Mrs. Cornell HOHENSEE.
Superior Pennsylvania. Court of
Submitted March 1977. April
Decided