Opinion

Commonwealth v. Burton

  • 452 Pa. 521
  • 307 A.2d 277
  • 1973 Pa. LEXIS 474
Court
Supreme Court of Pennsylvania
Filed
Jul 2, 1973
Status
Published
Author
Manderino
On the bench
Manderino, Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Mander-Ino
Cited by
19 cases
Authority
More cited than 7.4%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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