reiterating the well-settled elements of the ineffectiveness test, as rephrased in Cooper and quoted in this excerpt from Wholaver
How later courts described this case
- reiterating the well-settled elements of the ineffectiveness test, as rephrased in Cooper and quoted in this excerpt from Wholaver
- noting that “it is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which is the basis of the exclusion of evidence.”
- where the court held, inter alia, that viewed in totality of circumstances, identification of defendant at trial was independent, and evidence was sufficient for factfinder to establish guilt
- “Suggestiveness alone does not warrant exclusion. Instead ‘[i]t is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which [is] the basis of the exclusion of evidence.’ ” (citations omitted)
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
dissenting.
I agree with the dissenting opinion of Mr. Justice Manderino that the suggestiveness of the uncounselled pre-trial identification of appellant should have been challenged in a pre-trial motion to suppress. Moreover, I would remand for an evidentiary hearing on whether the in-court identification was tainted by the same, uncounselled pre-trial identification procedure.
The majority concedes that the Commonwealth witness’s identification of appellant at the scheduled preliminary hearing was made without counsel’s knowledge and in violation of appellant’s sixth amendment right to counsel. Nonetheless, the majority reviews the record and, without a prior fact-finding adjudication, summarily concludes that the in-court identification had a source independent of the illegal identification. I cannot agree. “This Court does not sit as a trier of issues of fact, expecting to be persuaded that one or *499 the other side is more credible. That is only a task for a trial court and we would never invade that area of the judicial process.” Reed v. Univ. C.I.T. Credit Corp., 434 Pa. 212, 217 , 253 A.2d 101, 104 (1969).
Where, as here, the illegality of the pre-trial identification is established, the federal Constitution and our own cases require the Commonwealth to demonstrate the independence of any in-court identification by clear and convincing evidence. See United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967); Commonwealth v. Cox, 466 Pa. 582 , 353 A.2d 844 (1976). Surely on the basis of this record it cannot be concluded that the witness’ in-court identification had an independent basis from the unlawful pre-trial procedure. Thus, the majority erroneously concludes that a motion to suppress the identification would have been wholly without merit and that counsel was not ineffective.