*2 CERCONE, P.J., Before CAVANAUGH, ROWLEY, and WIEAND, McEWEN, MONTEMURO, CIRILLO and JJ.
MONTEMURO, Judge:
Following trial, a jury found guilty burglary,1 robbery,2 conspiracy.3 Post-verdict motions *3 were denied learned distinguished and judge, trial Guarino, Honorable A. Angelo and appellant was sentenced to a term (10) (20) of ten to twenty years imprisonment on conviction, (10) (20) ten robbery twenty years concur rent imprisonment on burglary (5) conviction and five (10) ten years imprisonment concurrent on the criminal conspiracy Appellant conviction. several allegations raises of trial error on appeal. this We find no merit in any these issues and accordingly affirm.
On 31, the evening 1977, of October Mrs. Ella Woodley, 72 years of age, allowed three young black men into her house. initially permitted She them to enter her home because she recognized Plummer, John one of appellant’s codefendants. Immediately entry, after the the men an- nounced “this is a stick-up.” One of men grabbed Mrs. Woodley, and her if told she noise made a he would hit her, and the took other two various personal items from the house. They then locked Mrs. in a Woodley powder room in the basement left. and a later, Approximately half-hour 1. 18 Pa.C.S.A. § 3502.
2. 18 Pa.C.S.A. § 3701.
3. 18 Pa.C.S.A. § 903.
she freed herself and called the
The
after
police.
police,
receiving description
hold-up
men from Mrs. Wood-
males
ley, brought several black
back to her residence. She
perpetrators
identified two of them as the
of the crime.
Appellant
contends that a
initially
petition
Commonwealth
for an extension of the Rule 1100 rúndate
improperly
he, therefore,
granted and that
should be
The
discharged.
1, 1978,
rúndate was
and the trial
May
was first scheduled
for
The trial
February
postponed
April
1978.
until
10, 1978 at the
request
Although
co-defendant’s counsel.
Mrs. Woodley had told an assistant district
attorney on
telephone
trial, she, nevertheless,
that she
appear
would
did not
A
appear.
bench warrant was issued for her the
An
following day.
investigatory detective discovered that
she was in North
attending
Carolina
a funeral and would
return on April
1978. The
again
detective
tried to
contact her at her residence on April
but was told that
she had not
yet
as
returned. The detective contacted the
post office,
the utility company and
neighbors
ascertained that Mrs. Woodley still lived at the Philadelphia
address. The Commonwealth filed a petition
April
1978, for an extension of the
alleging
rúndate
due diligence
in attempting
to trial. The
bring
issue there-
fore
proved
is whether the Commonwealth
due diligence the extension
held on
April
has the
proving
burden of
due
diligence
aby
preponderance of the evidence. Common
*4
Ehredt,
(1979).
wealth v.
Appellant to appellant’s request hearing by denying suppression the concerning prob testify witness to complaining the produce identifica and the on-the-scene for the arrest able cause complain of the the alleges presence that Appellant tion 4. propri determine the effectively ing necessary witness Furthermore, con he identification. of the on-the-scene ety Lee, Pa.Super. tends that under Commonwealth wit complaining of the presence of quality regardless quantity of the mandatory ness is hearing. at the testimony produced the other Lee, id., the court stated: In Commonwealth complain- failure to have the Here, the Commonwealth’s her her of concerning observation testify, ant not of the identifi- attacker, her own view concerning also but evidence hearing judge left the without procedure, cation Accordingly, admissibility. to the issue essential Id., proof. meet failed to its burden at 758. erred in the trial court court, deciding that The after motion, justify proceeded then denying the on-the- relating to testimony of the admissibility record. of the entire an examination scene prop- the identification was court, concluding after that er, continued, identi- admissibility here to decide
Our decision of the entire record of a review fication on basis that we shall under- meaning understood as should not be deciding another case ... take such a review must hear judge admissibility, witness; if fails the Commonwealth theory opinion appellant raised this 4. The trial judge in his states waiving An post-trial the issue. examina- time therefore for the first belies this conclusion. tion of the record *5 362 witness,
produce
suppressed.
the identification should be
.,
289,
Today we hold that the presence identifying of an witness at a hearing suppress pre-trial on-the-scene identifica- tion is not mandatory. The rule enunciated in per se Lee is therefore overruled. though
Even observations of an witness are important considerations at a suppression hearing, this testimony is not mandated: constitutionally essence, process what the Stovall due right protects is
an It is evidentiary part adversary interest ... of our system accept that we at trial much evidence that has strong elements of untrustworthiness—an obvious exam- ple being testimony witnesses with a bias. While evidence, significant such testi- evidence, mony is still presence unlike the counsel, is goes not a factor that to the very heart—the “integrity” adversary process. Brathwaite, 98, 113, 2243,
Manson v. 432 U.S. 97 S.Ct. 2252, (1977). 53 L.Ed.2d
Finding no constitutional mandate for the presence witness, of the identifying we next turn to the ability of the Commonwealth to meet its burden at the suppression hear ing producing without that witness. The essential criteria 5. Of course, us, complaining in the case before witness is also the identifying witness. Almeida, 596, 603, 6. See Commonwealth v. 362 Pa. 68 A.2d Estate, In re Pew’s *6 identifi of pre-trial or not evidence determining whether of the circum under all reliability is admissible is its cation for the question The the record. stances disclosed challenged court is whether its admission of to warrant reliability sufficient indicia has may have been procedure the confrontation though even following The Brathwaite, supra. suggestive.7 Manson into consideration: are to be taken factors criminal at to view the of the witness opportunity ... attention, crime, of degree of the the witness’ the time criminal, the prior description of his accuracy confrontation, and at the of demonstrated certainty level and the confrontation. the crime the time between weighed corrupting these factors is Against identification itself. suggestive effect of the 2253, 53 Brathwaite, 97 at supra S.Ct. Manson v. at 154. L.Ed.2d hand, suppres at the brought the facts out the case the on-the-scene that the evidence of
sion show victim, and her and his appellant confrontation between him is reliable sufficiently identification of at that time The wit the trial court’s conclusion. support for a excess period ness viewed inside her home appellant description minutes. a detailed of gave of ten She to the brought back accomplices.8 Appellant and two Not did she scene within an hour of the incident. exchanged he had appellant, but she noted that identify designed emphasized exclusionary are It should be rules 7. Matlock, prohibit improper police U.S. conduct. U.S. v. 415 94 242. of identification S.Ct. 39 L.Ed.2d The exclusion improper police impermissible proper when conduct results in an police suggestive primary is on action. See confrontation. The focus Brathwaite, supra. (Emphasis supplied). Manson v. male, tall, (1) years age, Negro complexion, 21 six foot medium hair, hat, pants, pounds, a brown dark brown medium bush coat, heavy mustache. trench male, old, 5'6", (2) complexion, years pounds, Negro dark brim, black hat with wide dark brown leather maxicoat. male, 5'6", (3) years, Negro complexion, medium 20 to 25 hat, coat, waist-length pounds, light pants, dark a black leather earring in left ear. coats with one of co-conspirators. his picked She out two men, and exonerated two others.
Further, whatever suggestiveness inhered in proce dural aspects pre-trial identification clearly did not its outweigh reliability. record indicates no element of unfairness. Appellant was free to cross-examine police officers and to take the stand to dispute this testimony. Without indicia any unfairness, we conclude that suppression motion was properly denied.9
Appellant next contends that the trial court erred in failing to charge the jury according to Commonwealth v. Kloiber, *7 Kloiber stands for the proposition that:
... where a witness is
in position
not
a
to clearly observe
the assailant or he is not positive as to identity, or his
positive statements as to identity are weakened by quali-
fications or by failure to identify defendant on one or
prior
more
occasions, the
accuracy
identification is
so doubtful that the court should warn the
that the
jury
testimony must be received
Id.,
with caution.
At Mrs. Woodley testified that she positively identi- fied two men on the night of the incident but could not testify to a certainty that appellant was one of the men she had previously identified. She stated that the man she had previously identified had different facial hair. The thrust of her testimony indicated that she having problems remembering incident.
We first note that a judge trial give need not an applicable charge verbatim. Commonwealth v. Bishop, 472 Pa. A.2d 794 Nelson, In Commonwealth (1980), v. 488 Pa. Larsen, dissenting, Justice commenting Lee, on Commonwealth v. supra, recognized unavailability possible of a excep- witness as a per exclusionary tion to a se rule. disclaiming While herein we are a rule, per way se encourage we in no absence of an witness, recognize many that in cases such an absence could be fatal to the Commonwealth’s burden.
In Boone, Pa.Super. Commonwealth a allegation with similar our court faced case, In concerning charge. a defective Kloiber which, upheld charge court lower court when viewed whole, a provisions covered substantive substantially, Kloiber. in the charge case hand was proper
for these same reasons. The trial an judge, extensive and scholarly charge, instructed the that as a jury state- fact, ment of there in-court was no identification Mrs. Woodley. They were therefore they instructed that could use previous evidence of the identification. The judge then reiterated various factors that the jury should in determining consider of an accuracy out-of-court Therefore, that, identification. we conclude while the trial did judge wording Kloiber, not use the exact his instruc- tions exceeded the actually requirements that case.
Appellant contends that the trial judge committed an abuse of interfering discretion in with counsel’s examina tion of defense witness Russell Kolim. Mr. a Kolim was private investigator sought testify concerning who conversation he had with We Woodley. Mrs. find this claim wholly without merit. Brown, A.2d 101 *8 stated, the court “It always right is and some- duty
times the
of
judge
interrogate witnesses,
a trial
although,
course,
of
questioning
from the bench should
not show
or
unduly
Id.,
bias
protracted.”
Appellant argues that trial lastly in judge erred not charging on Count of Bill Two of Information appel that robbery, alleging with charged appellant
which during that assault aggravated crime of lant threatened the The necessary. not Common charge was robbery.10 This Informa that to trial on Count never moved wealth when prejudiced could be to see how tion. We fail considera jury’s from the was omitted felony additional an no error. There was tion. is af- reasons, of Sentence Judgment foregoing
For the firmed.
CERCONE, P.J., dissenting opinion. files CERCONE, dissenting: Judge, President I dissent. of the sole (1) presence holds majority suppress a motion to at a eye-witness (2) mandatory, is not on-the-scene pre-trial
a not alone warrant does of such witness that the absence identification, (3) that a and the witness’s of suppression officers, not case,' who were police third this party, state- eye-witness’s as to the sole testify eye-witnesses, may I feel that fundamental Because ment of identification. pres- guarantees requires process under due fairness since the witness, in this case especially ence of such a I against appellant, the sole witness eye-witness absent trial, if neces- hearing and suppression order a new would Lee, 262 Pa.Su- compliance with Commonwealth sary, Identification perior Ct. ¿ hearing on the basis suppression
offered officers and sole eye-witness from an absent learned they what fairness, as inadmissible and, the dictates of hearsay under evidence. evidentiary a pre-trial is entitled to person
An accused
identifica-
admissibility
pre-trial
hearing to determine
Lee, supra.
At the
tions. Commonwealth
Questions.
his Statement of
Appellant
one more issue in
raised
argument portion
his brief.
It
in the
issue was not addressed
This
*9
n.1,
Jackson,
367 is on burden of the of evidence the hearing, production the Rundle, ex rel. v. Commonwealth. Commonwealth Butler 141, (1968). 239 A.2d As this said 426 court 406, 409, Perdie, Pa.Superior v. 378 249 Ct. Turner, 359, 454 citing A.2d 361 Commonwealth v. (1974): 520, 523, 496, 314 A.2d Pa. 498 Evidence of an identification should not received at be pre-trial trial if circumstances the the of confrontation infected as rise to an by suggestiveness give were so (citations irreparable likelihood of misidentification. omit- ted.) However, special absent some of unfair- elements ness, we do not believe that confron- prompt on-the-scene suggestiveness. tations fall within this of ambit police not competent testify are for an absent sole identifying procedure replete witness and such with any the danger premise uncertain of identi- unsubstantial said, our Supreme fication. As has Court that the may procedure police used by [I]t with conducted such fundamental unfairness as result in deprivation Denno, of due of law. process v. Stovall (1967). 388 87 U.S. S.Ct. 1967 L.Ed.2d This [18 1199] attack, ground is a recognized independent any right resolving of counsel claim. In this all of question, must circumstances be considered and the is whether test or not ‘the confrontation so suggestive unnecessarily ’ to irreparable conducive mistaken identification... Denno, as to constitute prejudicial unfairness. Stovall Marino, 245, 253, supra. 435 Commonwealth v. Pa. 255 (1969). A.2d 916 essence, of the confrontation is what must reliability
be determined court. Manson v. Brath waite, U.S. 97 S.Ct. L.Ed.2d Thus, in ascertaining reliability of the confrontation procedure, reviewing placed great emphasis courts have of an witness as part Commonwealth’s burden.1 Jackson,
1. See also Commonwealth Ct. situation, (1974) (In photo array array actual must be dis- *10 368 Turner, A.2d 496
In Commonwealth v.
to be
confrontation
the on-the-scene
the court found
trial. The
introduced at
it could be
such that
reliable
robbery by
of a
near the scene
apprehended
defendant was
He was driven two blocks
ato broadcast.
police responding
Placing
him.
could observe
the victim-cabdriver
so that
testimony
suppression
on the cabdriver’s
weight
great
said,
IAnd
the two fellows.
me
these
asked
were
“They
suppression.
the denial
the court affirmed
yes,”
290, 390
Alvin,
Pa.Superior
Ct.
In erred
that the trial court
(1978) this court found
A.2d 827
defense
refusing
to allow
hearing
suppression
the
during
his
witness on
abili-
an
counsel to cross-examine
crime.
the scene of the
defendant at
ty
observe
harmless,
heavily
it relied
error
court found such
While this
trial in the case.
at
strong
presented
evidence
on
his identification was based
testified that
Sgt. Lang
...
and was
robbery
of the
day
on the events of
solely
police
at the
confrontations
one-on-one
by
not influenced
cross-examina-
unshaken on
testimony
His
was
station.
the defend-
identified
positively
tion ... Both witnesses
their identifications were
testified that
in court. Both
ant
crime
committed.
happenings
on the
when
based
Id.,
297,
In the instant identifica- on the scene a one-on-one hearing portrayed sion eye-wit- and sole absent tion based Woodley’s case. Ms. the victim this ness, Woodley, Ms. appellant’s hearing deprived suppression at the absence proce- of the to hear her version opportunity counsel her. facts became cross examine Certain dure and to proper questions by raised would have known at trial which had hearing, which suppression counsel at the appellant’s at trial Woodley Ms. testified four earlier. days held been Hodge, hearing.); suppression Commonwealth v. played at the (1977) (Photo inadmis- Pa.Superior Ct. produce photographs fails to sible if Commonwealth hearing.) case, in this she went hearing preliminary that after the right she identified the whether pondered home and about appellant. preliminary in identifying man Appellant grown had days robbery. sixteen after the held Woodley fact made Ms. hair that time and this facial made a mistake. whether she had uncertain about addition, that to their collec- police while the testified for Ms. brought suspects back four knowledge, they tive she identification, Ms. testified that Woodley’s Woodley *11 Ms. subjects. Woodley six and twelve Had viewed between counsel for the present suppression hearing, at the been and for could have elicited from appellant Commonwealth is, her robbery, the circumstances of the particular her in long stayed to the intruders ability appellant, view how house, appellant and her in identifying her confidence convey been able to her that time. She would also have the one-on-one confrontations. side of stands, information from As the record this invaluable court. presented suppression the victim was not to the not af- And, attorney more the defense importantly, examine the victim as to the opportunity forded the to cross procedure. confrontation that, me follow consideration of this case convinces
My Lee, the guidance supra, the ing Commonwealth at the proof did not meet its burden of hearing sup “At a on a motion to suppression hearing. an ‘on the scene’ identification it is essential that the press witness Ct. at testify.” Id. case, at 757. that in the Lee this While it true chose to determine a whether court without new reliable, I feel that the facts of this the identification was Rather, must case do not warrant such a review.2 and, if a suppression hearing, necessary, offered a new challenges trial. When a defendant the on-the-scene new victim, Woodley, identify appellant, signed had a 2. Ms. the would not prosecute’ appel- previous ‘not statement two weeks that she would co-defendant, lant, unequivocally appellant’s and while she identified prosecuting wrong person appellant. indicated her fear of in she case, in his procedures involved it is incum- Commonwealth, bent as essential to its burden of proof, produce person harm, who suffered crime, only eye-witness police, who alerted and who subsequently identified the defendant he when was brought back place which the criminal incident occurred. to do Failure this should result reason, And I identification. for this respectfully dis- sent from the opinion majority.
This case should be remanded for new suppression hearing and, if necessary, a new trial. A.2d Pennsylvania
COMMONWEALTH of McKNIGHT, Appellant. Robert *12 Superior of Pennsylvania. Court
Argued March 1982. Filed March