Commonwealth v. Thompkins , 311 Pa. Super. 357 ( 1983 )

MONTEMURO, Judge:

Following a jury trial, appellant was found guilty of burglary,¹ robbery,² and conspiracy.³ Post-verdict motions were denied by the learned and distinguished trial judge, Honorable Angelo A. Guarino, and appellant was sentenced to a term of ten (10) to twenty (20) years imprisonment on the robbery conviction, ten (10) to twenty (20) years concurrent imprisonment on the burglary conviction and five (5) to ten (10) years concurrent imprisonment on the criminal conspiracy conviction. Appellant raises several allegations of trial error on this appeal. We find no merit in any of these issues and accordingly affirm.

On the evening of October 31, 1977, Mrs. Ella Woodley, 72 years of age, allowed three young black men into her house. She initially permitted them to enter her home because she recognized John Plummer, one of appellant’s codefendants. Immediately after the entry, the men announced “this is a stick-up.” One of the men grabbed Mrs. Woodley, and told her that if she made a noise he would hit her, and the other two took various personal items from the house. They then locked Mrs. Woodley in a powder room in the basement and left. Approximately a half-hour later, she freed herself and called the police. The police, after receiving a description of the hold-up men from Mrs. Woodley, brought several black males back to her residence. She identified two of them as the perpetrators of the crime.

Appellant initially contends that a Commonwealth petition for an extension of the Rule 1100 rúndate was improperly granted and that he, therefore, should be discharged. The rúndate was May 1, 1978, and the trial was first scheduled for February 28, 1978. The trial was postponed until April 10, 1978 at the request of co-defendant’s counsel. Although Mrs. Woodley had told an assistant district attorney on the telephone that she would appear at trial, she, nevertheless, did not appear. A bench warrant was issued for her the following day. An investigatory detective discovered that she was in North Carolina attending a funeral and would return on April 22, 1978. The detective again tried to contact her at her residence on April 24, but was told that she had not as yet returned. The detective contacted the post office, the utility company and neighbors and ascertained that Mrs. Woodley still lived at the Philadelphia address. The Commonwealth filed a petition on April 27, 1978, for an extension of the rúndate alleging due diligence in attempting to bring appellant to trial. The issue therefore is whether the Commonwealth proved due diligence at the extension hearing held on April 28, 1978.

The Commonwealth has the burden of proving due diligence by a preponderance of the evidence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979). When the Commonwealth seeks an extension of the rúndate to secure the presence of a missing witness, the test is whether the methods of procuring the witness were reasonable under the circumstances of the case at that time. Commonwealth v. Long, 288 Pa.Super. 414, 432 A.2d 228 (1981). It is not necessary that all methods be exhausted. Commonwealth v. Long, id. From the above recitation of the circumstances surrounding the extension of the trial date, it is clear that the Commonwealth made more than a reasonable effort to produce Mrs. Woodley before May 1, 1978. The trial court was therefore correct in concluding that the Commonwealth was duly diligent and in consequently granting the extension.

Appellant next contends that the trial court erred at the suppression hearing by denying appellant’s request to produce the complaining witness to testify concerning probable cause for the arrest and the on-the-scene identification ⁴. Appellant alleges that the presence of the complaining witness is necessary to effectively determine the propriety of the on-the-scene identification. Furthermore, he contends that under Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), the presence of the complaining witness is mandatory regardless of the quantity and quality of the other testimony produced at the hearing.

In Commonwealth v. Lee, id., the court stated:

Here, the Commonwealth’s failure to have the complainant testify, not only concerning her observation of her attacker, but also concerning her own view of the identification procedure, left the hearing judge without evidence essential to the issue of admissibility. Accordingly, the Commonwealth failed to meet its burden of proof. Id., 262 Pa.Superior at 288, 396 A.2d at 758.

The court, after deciding that the trial court erred in denying the suppression motion, then proceeded to justify the admissibility of the testimony relating to the on-the-scene identification by an examination of the entire record. The court, after concluding that the identification was proper, continued,

Our decision here to decide the admissibility of the identification on the basis of a review of the entire record should not be understood as meaning that we shall undertake such a review in another case ... In deciding admissibility, the hearing judge must hear testimony of the identifying witness; if the Commonwealth fails to produce the witness, the identification should be suppressed. Id., 262 Pa.Superior at 289, 396 A.2d at 759.

The Lee court, while deciding the case on another ground, enunciated a per se rule as to the production of the identifying witness.⁵ That rule places the burden on the Commonwealth to produce that witness and if they fail to so produce, then the identification should be suppressed.

The Commonwealth contends that the relevant language in Lee is dictum because the case was decided on other grounds. We disagree with this contention,⁶ but decline to follow the dictates of Lee.

Today we hold that the presence of an identifying witness at a hearing to suppress a pre-trial on-the-scene identification is not mandatory. The per se rule enunciated in Lee is therefore overruled.

Even though the observations of an identifying witness are important considerations at a suppression hearing, this testimony is not constitutionally mandated:

In essence, what the Stovall due process right protects is an evidentiary interest ... It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness—an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and unlike the presence of counsel, is not a factor that goes to the very heart—the “integrity” of the adversary process.

Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140, 153 (1977).

Finding no constitutional mandate for the presence of the identifying witness, we next turn to the ability of the Commonwealth to meet its burden at the suppression hearing without producing that witness. The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive.⁷ Manson v. Brathwaite, supra. The following factors are to be taken into consideration:

... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson v. Brathwaite, supra at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154.

In the case at hand, the facts brought out at the suppression hearing show that the evidence of the on-the-scene confrontation between appellant and his victim, and her identification of him at that time is sufficiently reliable to support the trial court’s conclusion. The identifying witness viewed appellant inside her home for a period in excess of ten minutes. She gave a detailed description of appellant and two accomplices.⁸ Appellant was brought back to the scene within an hour of the incident. Not only did she identify appellant, but she noted that he had exchanged coats with one of his co-conspirators. She picked out two men, and exonerated two others.

Further, whatever suggestiveness inhered in the procedural aspects of the pre-trial identification clearly did not outweigh its reliability. The record indicates no element of unfairness. Appellant was free to cross-examine the police officers and to take the stand to dispute this testimony. Without any indicia of unfairness, we conclude that the 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, 378 Pa. 412, 106 A.2d 820 (1954). Kloiber stands for the proposition that:

... where a 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 qualifications 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 must be received with caution. Id., 378 Pa. at 424, 106 A.2d at 826-27.

At trial, Mrs. Woodley testified that she positively identified 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 was having problems remembering the incident.

We first note that a trial judge need not give an applicable charge verbatim. Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977).

In Commonwealth v. Boone, 286 Pa.Super. 384, 428 A.2d 1382 (1981), our court was faced with a similar allegation concerning a defective Kloiber charge. In that case, the court upheld the lower court charge which, when viewed on a whole, substantially, covered the substantive provisions of Kloiber.

The identification charge in the case at hand was proper for these same reasons. The trial judge, in an extensive and scholarly charge, instructed the jury that as a statement of fact, there was no in-court identification by Mrs. Woodley. They were therefore instructed that they could only use evidence of the previous identification. The judge then reiterated the various factors that the jury should consider in determining the accuracy of an out-of-court identification. Therefore, we conclude that, while the trial judge did not use the exact wording of Kloiber, his instructions actually exceeded the requirements of that case.

Appellant contends that the trial judge committed an abuse of discretion in interfering with counsel’s examination of defense witness Russell Kolim. Mr. Kolim was a private investigator who sought to testify concerning a conversation he had with Mrs. Woodley. We find this claim wholly without merit.

In Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970), the court stated, “It is always the right and sometimes the duty of a trial judge to interrogate witnesses, although, of course, the questioning from the bench should not show bias or be unduly protracted.” Id., 438 Pa. at 63, 265 A.2d at 107, quoting from Commonwealth v. Watts, 358 Pa. 92, 56 A.2d 81 (1948). In the case at hand, the trial judge properly intervened to clarify the responses of Mr. Kolim for the jury. The sought after testimony was eventually elicited and we see no prejudice resulting from the guidance of the trial judge. We conclude that there was no abuse of discretion.

Appellant lastly argues that the trial judge erred in not charging on Count Two of Bill of Information 816, which charged appellant with robbery, alleging that appellant threatened the crime of aggravated assault during that robbery.¹⁰ This charge was not necessary. The Commonwealth never moved to trial on that Count of the Information. We fail to see how appellant could be prejudiced when an additional felony was omitted from the jury’s consideration. There was no error.

For the foregoing reasons, Judgment of Sentence is affirmed.

CERCONE, P.J., files dissenting opinion.

1 . 18 Pa.C.S.A. § 3502.

2 . 18 Pa.C.S.A. § 3701.

3 . 18 Pa.C.S.A. § 903.

4 . The trial judge states in his opinion that appellant raised this theory for the first time post-trial therefore waiving the issue. An examination of the record belies this conclusion.

5 . Of course, in the case before us, the complaining witness is also the identifying witness.

6 . See Commonwealth v. Almeida, 362 Pa. 596, 603, 68 A.2d 595, 599 (1949), In re Pew’s Estate, 411 Pa. 96, 104, 191 A.2d 399, 404 (1963).

7 . It should be emphasized that exclusionary rules are designed to prohibit improper police conduct. U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. The exclusion of identification testimony is proper when improper police conduct results in an impermissible suggestive confrontation. The primary focus is on police action. See Manson v. Brathwaite, supra. (Emphasis supplied).

8 . (1) Negro male, medium complexion, 21 years of age, six foot tall, 230 pounds, medium bush hair, a brown hat, dark pants, brown trench coat, heavy mustache.

(2) Negro male, dark complexion, 25 years old, 5'6", 145 pounds, black hat with wide brim, dark brown leather maxicoat.

(3) Negro male, medium complexion, 20 to 25 years, 5'6", 145 pounds, dark hat, light pants, a black waist-length leather coat, earring in left ear.

9 . In Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980), Justice Larsen, dissenting, commenting on Commonwealth v. Lee, supra, recognized the unavailability of a witness as a possible exception to a per se exclusionary rule. While herein we are disclaiming a per se rule, we in no way encourage the absence of an identifying witness, and recognize that in many cases such an absence could be fatal to the Commonwealth’s burden.

10 . Appellant raised one more issue in his Statement of Questions. This issue was not addressed in the argument portion of his brief. It is therefore waived. Commonwealth v. Jackson, 494 Pa. 457 n.1, 431 A.2d 944 n. 1 (1981).