Commonwealth v. Tate , 229 Pa. Super. 202 ( 1974 )

Opinion by

Jacobs, J.,

Appellant was convicted by a jury on charges of burglary and robbery. The central issues raised on this appeal from the judgment of sentence challenge the ruling of the court below in refusing to suppress in-court identifications made by two victims of the crime and a police officer.

On the evening of December 8, 1971, three men forcibly entered the lobby of the Crawford Hotel in Philadelphia. Brandishing a shotgun, they restrained Robert Crawford, the proprietor, and three others while they searched the premises for valuables. The four victims were robbed, then bound hand and foot; and the trio departed carrying cash, jewelry, several radios, a television set, and three half-gallons of whiskey in red Christmas gift cartons.¹ The victims quickly untied themselves and summoned the police. Arriving promptly, the police obtained a general description of the robbers and began to search the neighborhood.

Within minutes, Officers Brennan and Smith observed two men emerging from an alley only one block from the hotel. One man was carrying a rifle and a television set, the other several red boxes. As the pair noticed the patrol car they ducked back into the alley, immediately reappeared without the packages and ran in different directions. Officer Smith pursued one of the men, Milton Smith, whom he soon apprehended. The other, Tate, dashed in front of the patrol car, and into an alley across the street. Officer Brennan gave chase, but the man escaped. Appellant was arrested 2 weeks later after Williams observed him in a bar and notified the police.

The issues in this appeal center upon the in-court identifications made by Crawford, Williams and Brennan. Appellant contends that Crawford’s in-court identification should have been excluded because he failed to give the officers a detailed description of the robbers and because he failed to identify the appellant at a preliminary hearing. However, these factors affect only weight and credibility, not admissibility. Neither factor served to impermissibly taint the in-court identification. Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971).

Appellant also objects to the in-court identification made by Williams. After the appellant was arrested, Williams was conducted to Tate’s jail cell to make an identification. This is an impermissibly suggestive procedure which provides “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). As such it was properly suppressed by the court below. Foster v. California, 394 U.S. 440 (1969); United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967). However, the court below permitted Williams to make an in-court identification because it found a sufficiently independent origin for the identification. Williams testified that the robbers were in the hotel for approximately 30 minutes, that the lobby wag brightly illuminated and that he had ample opportunity to observe the men. We, therefore, find no error in the hearing judge’s ruling. See Commonwealth v. Burton, 452 Pa. 521, 307 A.2d 279 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971); Commonwealth v. Pennebaker, 224 Pa. Superior Ct. 512, 306 A.2d 921 (1973); Commonwealth v. Baker, 220 Pa. Superior Ct. 86, 283 A.2d 716 (1971).

Appellant also objects to the in-court identification of Officer Brennan. Nine months after the robbery, in the course of preparation for trial, the district attorney presented Officer Brennan with a photographic display from which the officer selected the appellant’s photo. Under the rule of Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert, denied, 400 U.S. 919 (1970), the hearing judge suppressed this photographic identification because it was conducted in the absence of appellant’s counsel.²

The lower court permitted Officer Brennan to make an in-court identification because the identification had a sufficiently independent origin. Appellant challenges this ruling, alleging that a “fleeting glance” is insufficient to provide an independent origin. See Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Commonwealth v. Minifield, 225 Pa. Superior Ct. 149, 310 A.2d 366 (1973); Commonwealth v. Hall, 217 Pa. Superior Ct. 218, 269 A.2d 352 (1970). We are not prepared to say that the court below erred in finding an independent origin, see Coleman v. Alabama, 399 U.S. 1 (1970) ; Commonwealth v. Pugh, 226 Pa. Superior Ct. 50, 311 A.2d 709 (1973), however, it is not necessary to make a determination of this issue.

Because the facts surrounding Officer Brennan’s opportunity to observe the appellant were brought out at trial, the jury was fully apprised of the underpinnings of the officer’s identification. Additionally, the eyewitness testimony of Crawford and Williams was both consistent and positive, and each had ample and adequate opportunity to observe the appellant. We, therefore, find that the admission of Officer Brennan’s in-court identification, even if erroneous, was harmless error under the doctrine of Chapman v. California, 386 U.S. 18 (1967). See Harrington v. California, 395 U.S. 250 (1969).

We have reviewed appellant’s other arguments and find them to be without merit.

Judgment affirmed.

Wright, P. J., and Spaulding, J., did not participate in the consideration or decision of this case.

1 Crawford and Nathaniel Williams, an employee of the hotel and one of the victims, testified that the intruders had been in the hotel for approximately 30 minutes.

2 Because the Commonwealth was not in a position to appeal this decision, Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert, denied, 375 U.S. 910 (1963), we do not believe that the issue of whether Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert, denied, 400 U.S. 919 (1970), remains the law of this Commonwealth or whether the decisions in U. S. ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972), and U. S. v. Ash, 413 U.S. 300 (1973), have effectively abrogated the Whiting doctrine is properly before this Court Our own Supreme Court has yet to decide this issue, Commonwealth v. Claitt, 454 Pa. 313, 311 A.2d 922 (1973) (see concurring opinion by Justice Nix and concurring opinion by Justice Pomeroy joined in by Justice Eases).