# Commonwealth v. Burton

> Supreme Court of Pennsylvania · July 2, 1973 · 452 Pa. 521

URL: https://www.frixlaw.com/law-library/cases/9645985

## Case

- **Full name:** Commonwealth v. Burton, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 2, 1973
- **Citations:** 452 Pa. 521; 307 A.2d 277; 1973 Pa. LEXIS 474
- **Precedential status:** Published
- **Opinion:** Concurrence by Manderino
- **Judges:** Manderino, Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Mander-Ino
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645985

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645985. Public record. Not legal advice.