victim’s unobstructed view of assailant at close range in room illuminated by mercury vapor street light sufficient independent basis for in court identification of assailant
How later courts described this case
- victim’s unobstructed view of assailant at close range in room illuminated by mercury vapor street light sufficient independent basis for in court identification of assailant
- Rape victim’s testimony: “That’s the man that was in my room,” held to indicate independent origin for the identification.
Written by the judges who cited it.
The opinion
Concurring Opinion by
Mr. Justice Manderino :
I concur in the majority’s decision but for different reasons. Even if an in-court identification has a proper independent basis, the introduction into evidence by the prosecution of out-of-court identifications is reversible error if the out-of-court identifications occurred in violation of the appellant’s constitutional rights. Such evidence is subject to a per se exclusionary rule. Gilbert v. California, 388 U.S. 263 , 18 L. Ed. 2d 1178 , 87 S. Ct. 1951 (1967); Commonwealth v. Whiting, 439 Pa. 205, 211 , 266 A. 2d 738, 741 (1970).
In this case, however, I concur with the majority’s result because the two out-of-court identifications were not obtained in violation of the appellant’s constitutional rights. The first out-of-court identification did not result from a confrontation procedure with a potential for substantial prejudice, United States v. Wade, 388 U.S. 218 , 18 L. Ed. 2d 1149 , 87 S. Ct. 1926 (1967). Therefore, the appellant did not have a constitutional right to the assistance of counsel. During the second out-of-court identification at the jail, the appellant waived his right to the assistance of counsel.
I therefore concur in the affirmance of the judgment of sentence.