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
MANDERINO, Justice,
dissenting.
I must dissent from the majority’s conclusion that trial counsel was not ineffective for failing to file a motion to suppress certain in-court identification testimony.
The prosecution called Antonio Parsons to the witness stand during its case in chief. Parsons identified appellant as one of the participants in the January 5, 1976, attack which caused the death of Steven Johnson. On cross-examination, Parsons stated that he first told police that appellant was one of the assailants when he saw appellant at appellant’s preliminary hearing on these charges. Parsons, who was present as a witness in the room in which the preliminary hearing was to be held, testified that he recognized appellant when he saw appellant seated in the courtroom together with other males. Appellant, who was represented by counsel at the time, chose to waive the preliminary hearing, and, therefore, Parsons was not summoned to testify, and made no formal identification at that time. After the hearing was waived, a police detective asked Parsons if *500 he had recognized anyone, and Parsons replied that he had, identifying appellant.
Identification evidence should not be received at trial if the circumstances of the pretrial confrontation were so infected by suggestiveness as to give rise to a likelihood of misidentification. Commonwealth v. Turner, 454 Pa. 520 , 314 A.2d 496 (1974) (citing cases). A pretrial confrontation between a witness and the accused at a preliminary hearing is fraught with suggestiveness. Any identification which results from such an occurrence is suspect, and is properly the subject of a pretrial motion to suppress. Trial counsel’s failure to make such a motion in the instant case could have had no “reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967).
The prosecution argues, nevertheless, that appellant’s judgment of sentence should be affirmed because, even had trial counsel filed such a motion, it would have properly been denied. The prosecution bases this argument on Parsons’ testimony at trial which, according to the prosecution, establishes a sufficient “independent basis” for the in-court identification so that any “taint” caused by the pretrial procedure has been removed. See, Commonwealth v. Cox, 466 Pa. 582 , 353 A.2d 844 (1976). I would decline to pass upon this question at this state of the proceedings. Other than the brief factual outline given above, there is no indication in this record as to the circumstances surrounding Parsons’ confrontation with appellant at the scheduled .preliminary hearing. For example, this Court does not know whether appellant’s counsel was aware that there were potential identification witnesses present in the preliminary hearing courtroom, or whether counsel’s statements, or other circumstances indicated to those present — including Parsons — that appellant was, in fact, accused of Johnson’s murder.
Thus, the nature of the pretrial identification has not been fully defined, and, therefore, its effect on the in-court identification cannot now be determined without additional facts. I would therefore remand the matter to the trial court with *501 instructions that appellant be allowed to file a motion to suppress the identification testimony. If the trial court concludes that appellant’s motion should be granted, then a new trial must be held. If the suppression court denies appellant’s motion, he should then be allowed to refile his appeal to this Court.