Commonwealth v. Silver , 260 Pa. Super. 232 ( 1978 )

PRICE, Judge:

Appellant was convicted following a jury trial of rape,¹ robbery,² criminal conspiracy,³ and two counts of possession of instruments of crime.⁴ Post-verdict motions were denied, and appellant was sentenced. For the reasons stated herein, we affirm.

On January 6,1976, at approximately 12:00 p. m., a young black man entered a Philadelphia employment agency, operated by Mrs. Lila Fox, and requested an application. The only other person then in the office, Mrs. Loretta Collier, was also applying for employment. When Mrs. Fox went to the stairway to see her daughter off to lunch, she observed two other men lingering on the steps to the second floor office.

Mrs. Fox returned to her desk, and one of the men who had been on the steps entered the office within moments. At gunpoint, Mrs. Fox was ushered by the second intruder into a back room, where she was blindfolded and raped twice. The third man assisted robbing Mrs. Collier and removing company checks from the front office. Appellant and his brother, a co-defendant, were arrested several hours later at their home. Employment agency checks were recovered in a search of their living quarters.

Mrs. Fox made positive identifications of both defendants at a line-up and preliminary hearing. Mrs. Collier identified appellant’s brother and co-defendant on both occasions, but failed to identify appellant. At the hearing on a motion to suppress all identifications and physical evidence, the court determined that the line-up identifications were tainted, reasoning that the line-up was impermissibly suggestive in that both appellant and his twin co-defendant were in the line-up. The court found that the preliminary hearing was also conducted under impermissibly suggestive circumstances, and its suppressed those identifications. The court held that Mrs. Fox’s in-court identifications of the co-defendants and Mrs. Collier’s in-court identification of appellant’s co-defendant were admissible, resting upon independent bases.

Appellant’s first contention is that the court below erred in refusing to grant a mistrial when Mrs. Collier unexpectedly identified appellant at trial. This was the first time that Mrs. Collier identified appellant. She was unable to identify appellant at the line-up and gave contradictory identifications at the preliminary hearing. Finally, at the suppression hearing; Mrs. Collier’s testimony shows that she did not observe appellant’s face when he first came into the office, because at that time his back was to her as he spoke to Mrs. Fox and forced her into the back room. The court below concluded that Mrs. Collier’s in-court identification would not be suppressed because it did not follow identifications made in the former improper proceedings. The trial judge allowed the testimony but promised to give cautionary instructions, which he did.

Although identification evidence is clearly sufficient to support a conviction, even in the face of contradictory alibi evidence, Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), there are evidentiary and constitutional parameters which must be respected. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Supreme Court found that the sixth amendment right to counsel applied to identification confrontations conducted after the initiation of adversary proceedings. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), determined that some identification confrontations may be so impermissibly suggestive as to lead to irreparably erroneous identifications, and thus constitute deprivations of due process of law. A later in-court identification must have a basis independent from the infirm proceeding.

There are other cases which involve proper identification proceedings, resulting in no identification or qualified identification. In such a situation, the subsequent in-court identification is at once admissible. In these cases, however, the supreme court has cautioned:

“[W]here the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.” Commonwealth v. Kloiber, supra 378 Pa. at 424, 106 A.2d at 826.

The instant case presents an interesting blend of the two levels of identification evidence analysis. The pre-trial identification procedures were ruled impermissibly suggestive, thus indicating that an in-court identification would have to rest on an independent basis. At the same time, the witness exposed to those proceedings made no identifications at them, thus necessitating that a later in-court identification be accompanied by a Kloiber charge. Appellant insists that the protections of due process, first urged in relation to identification evidence in United States v. Wade, supra, must be extended in this case. Therefore, appellant maintains that the Commonwealth’s failure to establish an independent basis for Mrs. Collier’s in-court identification is fatal to the Commonwealth’s case, and that a new trial is required.

Appellant points to Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976), in support of his position. In that case, photographs were repeatedly displayed to a murder victim’s daughter. The appellant’s photograph was contained in several of the displays, but the witness failed to make an identification. The appellant was then arrested, placed in a line-up, and asked to speak. The witness identified him then, and she repeated her identification at trial. The supreme court found that the suppression court erred in failing to suppress the witness’s identification, since no independent basis was established. The court declared:

“Following a suggestive pre-trial identification procedure, a witness should not be permitted to make an in court identification unless the prosecution establishes by clear and convincing evidence that the totality of the circumstances affecting the witness’s identification did not involve a substantial likelihood of misidentification. (citations omitted)

. Trial testimony identifying one as the person observed at the time of a crime is a one-on-one confrontation involving circumstances even more suggestive than those present at pre-trial one-on-one confrontations. During the trial, the identifying witness knows that the defendant present in the courtroom has been accused, arrested, and is being tried for the crime. Prior to trial, such circumstances may not yet have occurred or may not yet be known to the witness. Thus, the testimony of a witness who will point an accusing finger at the defendant during the trial, should be prohibited unless the prosecution establishes by clear and convincing evidence at a suppression hearing that the witness’s proposed trial identification will be reliably based on the witness’s observation at the time of the crime, and that the identification was not induced by events occurring between the witness’s observations at the time of the crime and the witness’s in-court identification. Whether the prosecution has met its burden requires a consideration of the totality of the circumstances.” Fowler, supra, 466 Pa. at 203-204, 352 A.2d at 19-20 (citation omitted).

The court thus indicated that the whole area of identification evidence is a particularly sensitive one, and that, no matter what the circumstances, great care must be taken to ensure that Commonwealth action does not promote mistaken identification.

It might be argued that because Mrs. Collier made no identification at either of the pre-trial proceedings, she remained unaffected by the suggestiveness therein. Therefore, a later identification could not be tainted by the earlier proceedings. It is clear, however, that it is the suggestive proceeding itself, and not the identification made or lack thereof, which could potentially taint a later identification.

Nevertheless, even if we were to conclude that both evidentiary and constitutional safeguards should be accorded in a case in which no identifications are made at impermissibly suggestive pre-trial identification proceedings, but a later in-court identification is made, we are compelled to deny appellant the relief requested in the instant case.

The chief concern with identification evidence is its reliability. In this case, the jury was exposed to the surprise identification testimony by Mrs. Collier. When the court refused a mistrial at that point, defense counsel determined to establish the unreliability of that testimony, and in fact, counsel quizzed Mrs. Collier at length. The jury learned that Mrs. Collier was unable to identify appellant just two days prior to the trial because appellant’s back had been to her. In addition, the lower court instructed the jury:

“Where a witness is not in a position to clearly observe the assailant, or he or she is not positive as to identity, or his positive statements as to identity on one occasion are weakened by qualifications, or a prior failure to identify, the accuracy of the identification may be so doubtful as to be received by the jury with caution. And I will so charge you that you should receive the identification testimony of Loretta Collier with some caution.”

The cross-examination and instruction served to alert the jury to the unreliability of Mrs. Collier’s in-court identification. But the further fact of Mrs. Fox’s unhestitating identification renders the admission of Mrs. Collier’s harmless. Mrs. Fox identified both appellant and his. co-defendant on three separate occasions. At both the suppression hearing and at trial, Mrs. Fox testified to facts which clearly evidenced an independent basis for her in-court identification. Mrs. Fox saw appellant when she went to the steps to check on her daughter. She later saw him in favorable lighting conditions when he came into the office to whisper something to the first intruder. She testified that she studied his face when he approached her to have a pencil sharpened. She looked at him when she turned around to return the pencil to him, and she continued to observe his face until she realized he had drawn a gun. It was appellant who ushered her to the back room and ordered her to undress. Appellant finally blindfolded Mrs. Fox, prior to forcing her onto a couch and raping her. Mrs. Fox said she had ample opportunity to view appellant and that she noted especially his complexion, lighter than the co-defendant’s, and his bad teeth. In addition, a search of the rear bedroom in the residence occupied by appellant produced the employment agency checks taken in the robbery. The rear bedroom was the one in which appellant was taken into custody on the day before the search.

Under the circumstances of this case and the test enunciated in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), we find that the admission of Mrs. Collier’s in-court identification, accompanied by effective cross-examination and a Kloiber cautionary charge, was harmless error, at most. Finding that “[t]he uncontradicted evidence of guilt [is] so overwhelming, and the prejudicial effect of the improperly admitted evidence so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict,” 476 Pa. at 417, 383 A.2d at 168, we affirm the judgment of sentence.

Appellant’s second argument is that the trial court erred in refusing to permit testimony regarding the absence of seminal fluid on appellant’s undershorts. Pursuant to Pa.R.A.P. 1925(b), any alleged error to be asserted on appeal but not presented to the trial judge, upon request, after the taking of an appeal, is deemed waived. Because appellant did not include this with those raised in accordance with Pa.R.A.P. 1925(b), it is waived.

Appellant’s final contention is that:

“The court erred in interviewing tainted jurors in camera without the presence of the accused or counsel, and in refusing to grant a mistrial after it was established they had heard remarks deprecating appellant’s defense from a court officer during the jury deliberations.”

It is not necessary for us to address this issue at all because defense counsel did not raise the issue in post-trial motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). The issue was, however, presented to the court below in accordance with Pa.R.A.P. 1925(b), and the court’s opinion accompanying the appeal to this court discusses the issue. It has been held that failing to include an issue in written post-verdict motions is not cured by the lower court’s addressing the contention in its opinion. See Commonwealth v. Slaughter, 482 Pa. 538, 494 A.2d 453 (1978); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978).

Judgment of sentence affirmed.

CERCONE, J., concurs in the result. HOFFMAN, J., files a dissenting opinion, in which SPAETH, J., joins. The decision in this case was reached before the retirement of HOFFMAN, J. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

1 . 18 Pa.C.S. § 3121.

2 . 18 Pa.C.S. § 3701.

3 . 18 Pa.C.S. § 903.

4 . 18 Pa.C.S. § 907.