Com. v. Anderson, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RASHI ANDERSON,
Appellee No. 1236 EDA 2016
Appeal from the Order Entered April 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000878-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 06, 2017
The Commonwealth appeals from the suppression court’s order,
granting Appellee’s, Rashi Anderson, pretrial motion to suppress two out-of-
court photo array identifications made by the victims in this case. After
careful review, we affirm.
The suppression court summarized the facts adduced from the
suppression hearing as follows:
Michael Cordrey testified that on September 25, 2011, he
and Nicholas Meiring were walking along Spruce Street toward
42nd Street at approximately 1:30 a.m. Upon reaching the …
corner of 42nd Street, they were held up from behind by two
persons. One of the persons put a gun to Mr. Cordrey's left hip
and ordered him to walk down a nearby alleyway. He could not
recall whether he saw the person's face at this point. He
followed the order and then went down to the ground in a fetal
position. The person proceeded to go through Mr. Cordrey's
pockets and took his phone, wallet, and cash. Both persons then
quickly left the scene by running down 42nd Street. Mr. Cordrey
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and Mr. Meiring left immediately afterwards to attempt to find a
police officer in the area.
After flagging down a police officer, Mr. Cordrey gave a
statement around 2:50 a.m. to Detective Gregg Rodham of the
University of Pennsylvania Police Department ("Penn Police").
Mr. Cordrey described the perpetrator who held a gun to his hip
as a black male, 5'10" (five feet, ten inches) in height, weighing
180 (one hundred eighty) pounds, aged late thirties or early
forties, medium build, a bald/shaved head, dark complexion, and
wearing a black t-shirt and jeans. He described the gun used by
the perpetrator as a black semi-automatic [handgun], not a
revolver. He had given a nearly identical description to the
initial officer he flagged down right after the incident.
On October 14th, Detective Rodham called Mr. Cordrey
about viewing a photo array to possibly identify one of the
perpetrators. At the time Mr. Cordrey was visiting friends in
Princeton, New Jersey, which led Detective Rodham to email the
photo array to him instead of presenting the array in-person.
Mr. Cordrey identified [Appellee] as the perpetrator who he
believed held the gun to his back and robbed him, although he
was not completely positive at the time. He again later identified
[Appellee], this time in-court at the preliminary hearing on
January 20, 2012.
On cross-examination, Mr. Cordrey testified that he had
three to four alcoholic beverages on the evening before the
robbery. He saw the perpetrator holding the gun to his left hip
for about three to four seconds before being led into the
alleyway. The sky was dark but there was some artificial lighting
provided by the street lights at the intersection. He did not
recall ever looking back at the perpetrator holding the gun as he
walked in front of them into the alleyway. He was also uncertain
as to whether he saw either of the perpetrators' faces as they
ran away from the scene. It then took several minutes for him
and Mr. Meiring to find a police officer. They were then
transported to the Penn Police Station, where Mr. Cordrey gave
another description of the robber.
Three weeks later, Officer Rodham contacted Mr. Cordrey
about viewing the photo array over email. Both Mr. Meiring and
Mr. Cordrey were visiting friends and staying together in the
same dorm room/common area. Mr. Cordrey testified that he
did not recall whether or not he was present when Detective
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Rodham also contacted Mr. Meiring about viewing the same
photo array.
[Defense Counsel] Q. Mr. Cordrey, were you present when
Mr. Rodman (sic) called Mr. Meiring?
[Mr. Cordrey] A. I don't know.
[Defense Counsel] Q. You don't remember?
[Mr. Cordrey] A. No.
[Defense Counsel] Q. Is it possible that you don't
remember?
[Mr. Cordrey] A. Yes, it's possible. I don't recall, though.
[N.T. Suppression, 4/1/16, [at] 35.]
He doubted but was "not really sure" whether he and Mr.
Meiring used the same computer to view the photo array. [Id.]
Mr. Cordrey had "no idea" whether he was on the phone with
Detective Rodham while viewing the photo array. [Id. at 35-36.]
Nor did he recall how long the conversation lasted or if he
received the photo array before Detective Rodham initially called
him.
Mr. Cordrey could neither give an approximation of how
long he had access to the photo array before faxing it back to
Detective Rodham. He could not recall whether he left the room
when Mr. Meiring viewed the photo array for his own
identification.
[Defense Counsel] Q. Mr. Cordrey, do you recall leaving
the room so that Mr. Meiring could look at the photo array
or vice versa?
[Mr. Cordrey] A. I don't know.
[Defense Counsel] Q. You don't recall?
[Mr. Cordrey] A. I know I did mine by myself and then I
might have walked away, while he did his.
[Id. at 38.]
Mr. Cordrey testified that the photo array remained in his
email sent folder until it was automatically deleted at some
unknown future date. He also testified that during the two-and-
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a-half hours between receiving the photo array and faxing back
a potential identification, he spent a "considerable portion of that
time" looking it over. [Id. at 41-42.] On redirect examination,
Mr. Cordrey then testified that he did not believe he was on the
phone with Detective Rodham while viewing the photo array. He
also testified that he had no reason to go back and look at the
photo array that remained archived in his email after he
identified [Appellee].
On direct examination, Mr. Meiring testified that he and
Mr. Cordrey were walking along Spruce Street toward 42nd Street
at approximately 1:30 a.m. The two perpetrators approached
them at the corner of 42nd Street and one of them stuck a gun in
his back. The perpetrators told them both to "put your hands
down, just stay silent, and walk around the corner." [Id. at 45.]
Once around the corner, the perpetrators took Mr. Meiring's cell
phone, wallet, a credit card, ID, and some cash. Mr. Meiring
remained standing throughout the ordeal but could not recall
what Mr. Cordrey was doing at the time. Mr. Meiring had
consumed a couple alcoholic beverages earlier in the evening,
but testified that he did not feel under the influence at the time.
As the robbers fled the scene, he only saw their faces for a
couple of seconds.
Mr. Meiring and Mr. Cordrey ran the opposite way from the
perpetrators, trying to find anyone with a phone. They found a
police officer after traveling a few blocks. They both provided a
description of the perpetrators. The officer then took them to
the Penn Police Station, where they gave statements to
Detective Rodham. Mr. Meiring gave a description of one of the
perpetrators as a black male, around 5'10" (five feet, ten
inches), and in his late thirties or early forties. He could not
recall for which of the two perpetrators he provided this
description.
On cross-examination, Mr. Meiring testified that he had
consumed four or five alcoholic beverages earlier in the evening.
He kept his eyes forward during the robbery and only saw the
faces of the perpetrators for a couple of seconds as they turned
back and looked at him and Mr. Cordrey. He could not recall
whether there were any lights on in the alleyway during the
robbery.
In his initial statement to the … Penn Police[], Mr. Meiring
was unable to describe the person that held the gun to his back
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and robbed him beyond that he was a black male with an
average build wearing a black t-shirt. Mr. Meiring testified that
he was unsure when he selected [Appellee] in the photo array
whether [Appellee] specifically robbed him or Mr. Cordrey. He
testified that he based his identification off of the four to five
seconds he saw the perpetrators running away from the
alleyway. When he first viewed the photo array, he immediately
narrowed it down to No. 5 ([Appellee]) and No. 8. After some
more time, he selected No. 5 on the photo array. He further
testified that he assumed that h[e] and Mr. Cordrey used the
same computer to send back their identifications to Detective
Rodham. On redirect examination, Mr. Meiring testified that he
looked at the photo array separately from Mr. Cordrey.
On direct examination, Detective Rodham testified that he
was the assigned investigator for the robbery that occurred on
September 25th. On October 12th, Detective Michael Kimmel of
the Southwest Division of the Philadelphia Police Department
contacted Detective Rodham about the recovery of multiple
pieces of identification belonging to Mr. Cordrey and Mr. Meiring
that were found on [Appellee]. Detective Rodham prepared a
photo array that included [Appellee] in position No. 5 among
eight (8) possible selections. On October 14th, the detective
contacted Mr. Cordrey and Mr. Meiring about viewing the photo
array over a computer and sending back their impressions.
On cross-examination, Detective Rodham testified that it
was "absolutely not" the Penn Police's standard procedure to
email a photo array to victims. [Id. at 77.] He further provided
that it was his personal and professional preference to observe
someone view a photo array in-person. Detective Rodham
created the photo array that included [Appellee] with the
assistance of a computer program and his own discretion.
On direct examination, Detective Kimmel testified that on
September 30th he responded to a domestic assault incident
involving [Appellee]. In connection to the incident, he and his
partner arrested [Appellee] and performed a search incident to
arrest for their safety. Various IDs and credit cards were then
found on [Appellee’s] person that belonged to Mr. Cordrey and
Mr. Meiring.
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Suppression Court Opinion (SCO), 11/18/16, at 2-8 (some internal citations
omitted). Following the suppression hearing, the suppression court
granted in part and denied in part [Appellee’s] Motion to
Suppress Identification. Th[e suppression c]ourt denied the
suppression of the in-court identifications. However, th[e
suppression c]ourt granted the suppression of the out-of-court
identification[s] based upon the photo array and based its ruling
on the totality of the circumstances, finding the identifications
and process as being mute [sic] based on the circumstances.
The photo array procedure was done improperly, although at no
fault of the witnesses, and without evidence of any bad faith on
the detective's part.
Id. at 8 (internal citations omitted).
The Commonwealth filed an interlocutory appeal, and certified that the
prosecution would be substantially handicapped by the suppression court’s
order. See Commonwealth’s Notice of Appeal, 4/28/16, at 1 (single page);
see generally Pa.R.A.P. 311(d) (“In a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as
of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”). The Commonwealth filed a
Pa.R.A.P. 1925(b) statement the same day. The suppression court
subsequently filed its Rule 1925(a) opinion on November 18, 2016.
The Commonwealth now presents the following question for our
review:
Did the lower court err in suppressing two armed robbery
victims' out-of-court identifications, by holding that under all the
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circumstances the photo array from which the victims selected
[Appellee’s] picture was unduly suggestive?
Commonwealth’s Brief at 4.
Our standard of review in addressing a challenge to the
suppression court's granting of a suppression motion is well
settled.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review and
consider only the evidence from the defendant's witnesses
together with the evidence of the prosecution that, when
read in the context of the entire record, remains
uncontradicted. The suppression court's findings of fact
bind an appellate court if the record supports those
findings. The suppression court's conclusions of law,
however, are not binding on an appellate court, whose
duty is to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa.
Super. 2012) (citations omitted). “Our standard of review is
restricted to establishing whether the record supports the
suppression court's factual findings; however, we maintain de
novo review over the suppression court's legal conclusions.”
Commonwealth v. Brown, … 996 A.2d 473, 476 ([Pa.] 2010)
(citation omitted).
Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016).
When determining the admissibility of identification testimony,
this Court has held that
suggestiveness in the identification process is a factor to
be considered in determining the admissibility of such
evidence, but “suggestiveness alone does not warrant
exclusion.” A pretrial identification will not be suppressed
as violative of due process rights unless the facts
demonstrate that the identification procedure was so
infected by suggestiveness “as to give rise to a substantial
likelihood of irreparable misidentification.”
Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa. Super.
1998) (citation omitted).
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Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa. Super. 2009).
In determining whether an identification procedure gives rise to a
substantial likelihood of irreparable misidentification, this Court applies a
totality of the circumstances test, using factors originally set forth in Neil v.
Biggers, 409 U.S. 188 (1972). See Commonwealth v. Edwards, 762
A.2d 382, 391 (Pa. Super. 2000).
Factors to be considered in evaluating the likelihood of
misidentification in a particular instance are:
[]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, … 432 U.S. [98,] 114 [(1977)]…. See
also … Biggers, 409 U.S. [at] 199…. The most important factor
in the totality of the circumstances test is the opportunity of the
witness to view the suspect at the time of the crime.
Commonwealth v. Davis, … 439 A.2d 195 ([Pa. Super.] 1981).
Commonwealth v. Derrick, 469 A.2d 1111, 1120–21 (Pa. Super. 1983)
(footnote omitted).
Instantly, the suppression court determined that “under the
circumstances, the identification was not reliable due to the impermissible
suggestiveness pervading the improper presentation of the photo array.”
SCO at 10. The suppression court elaborated as follows:
First, the decision of Detective Rodham to email the photo
array to the two witnesses is deserving of great scrutiny. During
his testimony, Detective Rodham conceded that it was
"absolutely not" the standard procedure of the Penn Police to
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email a photo array to victims of a crime. Further, he admitted
that it was both his professional and personal preference to
observe in-person a witness's reactions and comments to a
photo array. While he believed this exception to standard
procedure was acceptable due to the witnesses not being
available in-person on October 14th, the witnesses were only
temporarily out-of-state. By allowing Mr. Cordrey and Mr.
Meiring to view identically constructed photo arrays from likely
the same computer, while in the same dorm room/common
area, one after the other, a high risk of error was created. They
were left completely to their own devices to view the photo array
and send back their impressions. There exists good reason for
separating witnesses from each other during the presentation of
a photo array as it mitigates the potential suggestiveness of the
identification. Photo arrays are ordinarily conducted with a
Detective physically present and each witness separated from
the other.
Second, the testimony by Mr. Cordrey and Mr. Meiring
regarding how they conducted the identification procedure
independent of police observation contained several gaps and
disparities concerning their recollections. Mr. Cordrey could not
affirmatively deny that he was not present while Mr. Meiring
made his own identification based off of the photo array. Mr.
Cordrey could not recall if he was present while Detective
Rodham discussed the parameters of the photo array with Mr.
Meiring over the phone. These fuzzy recollections were neither
isolated occurrences during the testimony of the witnesses, they
were among many worrisome details in how the photo array was
actually administered. Mr. Cordrey was further unsure whether
[he] and Mr. Meiring utilized the same computer, although Mr.
Meiring believes they may have. Mr. Cordrey could not recall if
he left Mr. Meiring to himself to view the photo array. Lastly,
Mr. Cordrey was left with unrestrained access to the photo array
until it was automatically deleted by the email program at an
unknown later date. Overall, the witnesses could not
affirmatively corroborate having followed many of the
instructions given by Detective Rodham. The likelihood of an
unreliable identification was substantial due to the unmonitored
presentation of the photo array to the witnesses.
…
Here, two adult witnesses were left to themselves to view
identically constructed photo arrays from likely the same
computer, while staying in the same dorm room/common area,
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one after another, independent from any police observation.
Simply put, two witnesses should not be left alone together to
conduct a highly sensitive police identification procedure, the
risks should be undoubtedly apparent. The detective conceded in
his testimony how this was very far removed from the standard
procedure of his department and for good reason. The testimony
of the witnesses concerning the procedure, full of blurred
recollections and equivocal denials, could not cure the
overwhelming deficiencies of how the photo array was
conducted. This court does not believe there was any bad faith
on the detective's part nor any fault to the witnesses. However,
the very substantial likelihood of an unreliable, suggestive
identification arising from the many errors in how the photo
array was conducted warrants the suppression of the out-of-
court identification.
Id. at 10-12.
The Commonwealth argues that the suppression court abused its
discretion in granting suppression because “the identification procedure was
merely unusual, not improper or suggestive.” Commonwealth’s Brief at 14.
The Commonwealth further contends that the witnesses’ testimony, that
they had followed Detective Rodham’s instructions, “resulted in a procedure
in which each viewed a non-suggestive array independently and reported his
determination.” Id. at 15. Essentially, the Commonwealth asserts that
despite the unorthodox procedure, “there was nothing to single out
[Appellee]’s photograph over the other seven in the array.” Id.
We agree with the Commonwealth that there was nothing inherently
suggestive in the array presented to the victims. Indeed, it does not appear
that the suppression court indicated otherwise. The suppression court’s
concerns, instead, centered not on the array itself, but the manner in which
it was presented and viewed. The Commonwealth has offered no legal
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authorities suggesting that an otherwise non-suggestive photo array could
not, in at least some circumstances, be presented in a manner that results in
“a substantial likelihood of irreparable misidentification.” Kubis, 978 A.2d at
396 (citing Bruce, 717 A.2d at 1037). Indeed, the applicable factor under
consideration is “suggestiveness in the identification process,” not merely
suggestiveness of the photo array itself. Id. (emphasis added). Clearly, if
while showing an otherwise non-suggestive photo array to a victim, a police
officer pointed to the person under suspicion, the non-suggestive nature of
the photo array would not have rendered the identification made immune
from scrutiny. Indeed, in such circumstances, the non-suggestive nature of
the photo array would not be a significant factor at all. Likewise, here, the
brunt of the suppression court’s analysis was concerned with the manner in
which the array was presented to the victims, and did not suggest that there
were any deficiencies in the array itself.
Moreover, the suppression court did not express any concern about
the instructions actually given by Detective Rodham to the victims, Mr.
Cordrey and Mr. Meiring. The court’s concern was with, instead, whether
the victims’ testimony adequately demonstrated that they followed those
instructions. In this regard, the court found their recollections of what
occurred during the photo lineup distressingly “fuzzy,” SCO at 11, and “full
of blurred recollections and equivocal denials,” id. at 11. In essence, the
court did not find credible their testimony that they had followed Detective
Rodham’s instructions. Although not stated precisely as such, the court
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appears to be suggesting that the victims might have collaborated on
making the identification, or at least that the second victim to view the
photo array may have been aware of the first victim’s choice. The
suppression court also seems to be suggesting that the victims’ testimony
did not do enough to dispel that possibility.
The Commonwealth argues, however, that the court’s credibility
determinations contradict the court’s maintaining that there was no “fault”
on the part of the witnesses. Id. at 12. The Commonwealth also points to
parts of the victims’ testimony which supported a finding that the
identification procedure was not suggestive, i.e., that they had not
collaborated or that each had not otherwise been aware of the selection
made by the other. Commonwealth’s Brief at 20-22.
We reject this argument. The court’s findings that the victims’
recollections were not credible, and that they were also not at fault for the
risk of misidentification brought about by the procedure, are not mutually
exclusive conclusions, especially in the circumstances of this case. Because
Detective Rodham was not physically present when they made their
identifications, he could not corroborate that they had followed his
instructions. Moreover, the victims gave their testimony several years after
the events in question, which surely contributed to their inability to recall the
details of the identification procedure. That they could not credibly testify
that Detective Rodham’s instructions were dutifully followed does not imply
that they had intentionally, rather than inadvertently, failed to follow those
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instructions. Moreover, the Commonwealth’s selective choice to cite
particular answers by the victims does not persuade us that their testimony,
in the aggregate, was unequivocal in this regard. That the court did not
reject or accept their testimony in toto is not demonstrative that the
suppression court had abused its discretion.
Moreover, in light of the applicable standard, we find ample reasons in
the record supporting the suppression court’s determination that the
identification procedure bore a high risk of misidentification beyond the
reasons specifically addressed by the court in its opinion.
First, we consider the “opportunity of the witness[es] to view the
criminal at the time of the crime,” “the witness' degree of attention,” and the
“accuracy of [their] prior description[s] of the criminal[.]” Brathwaite, 432
U.S. at 114. The robbery occurred at approximately 1:30 a.m. Both
victims were drinking that evening. N.T., 4/1/16, at 22, 54. Although Mr.
Cordrey testified that there were street lights, he could not “quantify how
light it was or how dark it was.” Id. at 10. Mr. Meiring could not recall
whether the alleyway in which they were taken had any street lights at all.
Id. at 57.
Mr. Cordrey testified that he initially got a brief look at one of his
assailants when initially confronted with a gun to his hip. Id. at 25. He
turned toward the gun and saw the assailant’s face for “about three to four
seconds.” Id. After being taken into the darker alleyway and robbed, he
said he saw the two perpetrators running away, but was “uncertain about
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seeing their faces.” Id. at 31. Mr. Cordrey testified inconsistently about
whether he was in the darker alleyway or on a better-lit street when he had
observed the assailant’s face. Initially, he stated that he turned and
observed the man’s face when he “was being led down the alleyway.” Id. at
9. Later, he testified that he made the observation before he was led down
the alleyway. Id. at 26. When he finally found the police, he described the
suspect as a “[b]lack male, five-ten, 180 pounds, later 30s, early 40s,
medium build, bald or shaved head, dark complexion, wearing a black tee
shirt, and jeans.” Id. at 13.
Mr. Meiring testified that he only ostensibly observed Appellee while
the assailants were running away. Id. at 46. He was approximately 15 feet
away from them at the time. Id. at 47. He did not testify as to whether he
only observed a profile or the entirety of a face.1 His description of the
assailant given to police immediately after the robbery was very general,
describing a “black male with a black tee shirt and with [an] average build.”
Id. at 59. In sum, the victims, while under the influence of between 3-5
drinks each, and in far less than ideal lighting, had the opportunity to
observe the assailant later identified as Appellee for a few seconds each.
The descriptions they gave were not entirely inconsistent, but they did differ
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1
It stands to reason, as a matter of common sense, that the assailant’s
head could not rotate 180 degrees backwards while running away from Mr.
Meiring. Thus, it seems most likely that Mr. Meiring observed the profile of
the man’s face.
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greatly in that Mr. Cordrey gave a far more detailed description as compared
to Mr. Meiring’s very general description. Notably, neither victim initially
described an assailant with a beard.
Next we consider “the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation.”
Brathwaite, 432 U.S. at 114. The victims were each shown the same
photo array of eight bearded, bald, black men, including Appellee, three
weeks after the robbery. Both victims selected Appellee, the fifth photo,
located on the bottom left hand side of the photo array. On the array, Mr.
Cordrey wrote “I believe it was the bottom left, No. 5, however, I’m not
positive. But I do believe he was about five-ten, 180 pounds.” N.T., 4/1/16,
at 17 (emphasis added); see also Commonwealth’s Exhibit 16. When asked
if Detective Rodman had advised him “if the suspect may or may not even
be in the photo array,” Mr. Cordrey answered, “I didn’t even realize it was a
possibility.” Id. at 18. When later asked, “when you viewed this photo
array, you were not sure whether it was No. 5?”, he answered, “I did not
have a positive decision.” Id. at 40.
Mr. Meiring was also equivocal in his selection. Mr. Meiring wrote out
his entire thought process during his selection of No. 5 on the top of the
photo array, as follows: “My first reaction when I saw the photo was #5 and
#8 (bottom right and bottom left). If I had to pick just one, definitely #5.
The men were [of] pretty average build which makes me think it couldn’t be
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2, 6, 7 who seem to be more heavy set.” Commonwealth’s Exhibit 18
(emphasis added).
In sum, the record does not tend to establish that either victim
identified Appellee with a high degree of certainty. Several weeks had
passed since they had the opportunity to observe their assailant. Mr.
Cordrey was not positive about his selection, and, distressingly, he testified
that he was not even aware of the possibility that the assailant was not one
of the eight persons depicted in the photo array. Mr. Meiring, who had given
a far less detailed description initially, seemed to have equivocated between
two photos, and only selected Appellee after saying, “if I had to pick just
one[.]” Id.
When added to the factors discussed by the suppression court, we
conclude that the totality of the circumstances in this case tended to show
that there was “a substantial likelihood of irreparable misidentification”
during the unorthodox out-of-court identification procedure which occurred.
While we are reluctant to conclude that the unorthodox nature of that
procedure was itself likely to result in misidentification, we acknowledge and
agree with the suppression court that the victims’ testimony was somewhat
inconsistent with regard to how closely they followed, or understood,
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Detective Rodman’s instructions.2 As noted above, we are particularly
concerned that Mr. Cordrey did not even know that it was possible that his
assailant would not be on the photo array he was shown and, relatedly, that
Mr. Meiring seemed compelled to make a selection. We also deem relevant
the victims’ brief opportunity to view the perpetrators in poor lighting
conditions, the mixed quality of initial descriptions, the discrepancies
between those initial descriptions and the bearded individuals depicted in the
photo array, and the victims’ equivocation regarding their degree of
certainty in selecting Appellee from the photo array. Considering the totality
of all these circumstances, we cannot conclude that the suppression court
abused its discretion when suppressing the at-issue out-of-court
identifications.
Order affirmed.
Judge Musmanno joins this memorandum.
Judge Shogan notes her dissent.
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2
To elaborate, we do not consider the mere facts that the photo array was
emailed to the victims and that Detective Rodman was not physically present
when the victims’ selections were made to be dispositive.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2017
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