450 Pa. 296 | Pa. | 1973
Opinion by
On April 30, 1957, James Charles Wilson (appellant), and co-defendant Edward Dennis were brought to trial in the Court of Common Pleas of Philadelphia,
Pursuant to the Post Conviction Hearing Act
The facts that gave rise to appellant’s prosecution on bill No. 432 are as follows: On February 24, 1957,
Appellant was arrested on March 28, 1957. Miss Reiser identified appellant only, in a two-man lineup consisting of appellant and his co-defendant. Although she viewed a number of people at the police station, she was told by the police immediately before viewing appellant and his co-defendant, that these two men had committed similar acts upon other women. At trial, the prosecutrix, when asked on direct examination if the man who raped her was in the courtroom, pointed to appellant. On cross-examination the prior lineup procedure was elicited from the prosecutrix.
The question presented is whether an illegal pretrial confrontation tainted Miss Reiser’s in-court identification of appellant. Since the challenged pretrial confrontation occurred before United States v. Wade,
We have no difficulty concluding that, in view of the circumstances surrounding the pretrial confrontation, appellant was denied due process of law. Although this case is governed by the pre-Wade and Gilbert standard, the United States Supreme Court’s observations in Wade are most relevant. There the Court recognized that a major factor contributing to mistaken identification has been the degree of suggestion inherent in the prosecution’s manner of presenting the suspect to witnesses for pretrial identification. 388 U.S. at 228. The Court further remarked that the impediments to an objective observation are increased when the prosecution is for rape and the victim is the witness. The particular hazard presented is that the victim’s understandable outrage may excite vengeful or spiteful motives. Id. at 230. Noting that lineups are most often used to crystallize an eyewitness’ identification of the accused for future reference, the Court specifically condemned various “suggestive procedures.” Among those condemned were telling the witness that they have caught the culprit, after which the accused
In addition, it was unnecessary for the police to conduct a two-man lineup. Having shown Miss Reiser a number of men before showing her only the appellant and the co-defendant they could have only intended to single out these suspects as her assailants. The Commonwealth fails to offer any justification for this procedure. The surrounding circumstances were hardly as compelling as those which were found to justify the one-man lineup in Stovall, where the witness was hospitalized and no one knew how long she would live. See Simmons v. United States, 390 U.S. 377, 384-85 (1968). Finally, due to the extremely weak description that Miss Reiser gave the police immediately following the rape there was a strong possibility that the procedure utilized would lead to a misidentifieation. Id., see Palmer v. Peyton, 359 F. 2d 199, 201 (1966).
The Commonwealth contends that, even if the pretrial confrontation was invalid, the in-court identification was based upon observations of the appellant independent of the impermissible lineup and therefore not tainted. In Wade, the Court stated that the following factors should be considered in determining whether the Commonwealth has established by clear and convincing evidence that the in-court identification had an independent source: “. . . the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the
Having reviewed the record with these considerations in mind, we note: (1) except for the pretrial lineup, Miss Reiser only observed the man identified as appellant for a few moments on a dark street; (2) she was only able to describe him as a “tall man;” and (3) there was more than a four-week interval between the alleged act and the lineup. Furthermore, on cross-examination she was unable to say whether she would be able to recognize appellant on the street or in a group of men. Even though Miss Reiser’s in-court identification was unequivocal, we are not convinced that it was based upon an observation of the appellant independent of the impermissible lineup.
Order of the Superior Court is reversed, the judgment of sentence is vacated and a new trial is granted.
Act of January 25, 1966, P. I/. (1965) 1580, 19 P.S. §1180-1 et seq. (Supp. 1972).
TMs order was affirmed per curiam without opinion by the Superior Court. Commonwealth v. Wilson, 216 Pa. Superior Ct. 745, 258 A. 2d 335 (1969). We denied allocatur.