Commonwealth v. Elmore

PRICE, Judge

(dissenting).

I must dissent from the majority opinion granting the appellant a new trial. I find no merit to appellant’s allegations of error, and would affirm the judgment of sentence.

The facts as found in the record reveal the following: Rochelle Galman returned to her apartment at approximately 10:15 p. m., on March 26, 1974, and interrupted a burglary in progress. Miss Galman observed two men leaving the apartment but could not make a positive identification. However, a neighbor, Mrs. Patricia *478 Keyes, also observed the two men, and was able to give a clear description of one of the burglars.

Mrs. Keyes was an exceptional witness and her testimony was clear, concise, and very convincing. She stated that the men were approximately ten feet from her and that she observed them for two or two and one-half minutes. Mrs. Keyes testified that the men came around the side of the building and walked past her. That area of the apartment complex is extremely well lighted by several floodlights, and the witness had an excellent opportunity to observe appellant, both full face and profile. Mrs. Keyes indicated that she felt it better to give one completely accurate description rather than two sketchy ones, so she concentrated on only one of the two men (appellant) and glanced but briefly at the other man.

She told the police the man was five feet eleven inches tall, weighed two hundred pounds, and had dark hair. He was wearing a navy blue, nylon windbreaker, black pants, black shoes, and a checkered shirt. In addition, appellant was carrying a flashlight, a pair of pliers, and a screwdriver. She stated that the two men got into a large, dark blue car with a black vinyl roof. She noted that the car had permanent Pennsylvania license plates but could not discern the license number because the car was in a darkened area and the occupants did not turn on their car lights. Mrs. Keyes chased the car on foot in an effort to ascertain the license number, but to no avail.

Appellant took the stand himself and denied any involvement in the crime. He also called, as alibi witnesses, his mother and father. His mother stated that he had been with her the entire evening of March 24, 1974. Both appellant and his mother insisted they were certain of the date because the next day, March 27, 1974, appellant’s father retired. The jury, however, chose to disbelieve this testimony and credited instead that of the Commonwealth’s witnesses.

*479 Appellant first alleges that his arrest was not supported by adequate probable cause and was, therefore, illegal. He then argues that the evidence obtained from the arrest, i. e., appellant’s photograph and the subsequent identification, should have been suppressed. The alleged illegal arrest appellant is contesting was not made in connection with the case at bar, but was made instead for an unrelated burglary which occurred approximately six weeks later. When I examine the probable cause supporting the arrest warrant, I find it to be adequate.

The victim of the second burglary gave police a description of the two men who committed the crime as well as the license number of the get away car. A check of the license number revealed the car was leased to Pasquale Navarra. Warrants were issued for Navarra and another male. Twenty-five minutes after the burglary, the police had established a surveillance of Navar-ra’s apartment and the get away car which was parked outside. Navarra and appellant, driving a different car, returned to the apartment at 1:00 p. m. At 2:00 p. m., both men left the apartment and entered the second car. At this time they were arrested.

When determining if probable cause does exist, we must bear in mind:

“ ‘that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, (citation omitted); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, (citation omitted); that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, (citation omitted); and that their determination of probable cause should be paid great deference by reviewing courts, (citation omitted).’ *480 Spinella v. United States, 393 U.S. 410, 419 , 89 S.Ct. 584, 590 , 21 L.Ed.2d 637 (1969).” Commonwealth v. Williams, 236 Pa.Super. 184, 188-89 , 345 A.2d 267, 269 (1975).

Applying the above rule, I must conclude that there was adequate probable cause to arrest appellant.

Appellant next contends that the actual photographic identification was unduly suggestive. The photo identification occurred as follows: Shortly after the burglary, Patricia Keyes looked through approximately 3800 photographs, but was unable to recognize anyone. Appellant’s picture was not among these photographs. After appellant’s arrest for the unrelated burglary, Mrs. Keyes was shown six more pictures, including appellant’s. At this time she made the identification.

Appellant apparently bases his claim of undue suggestiveness on the fact that the five other pictures shown Mrs. Keyes had been taken from the 3800 previously shown her. Although Mrs. Keyes did admit that she recognized several of the five pictures, she did not recognize all five because she had previously seen so many. There was nothing to suggest prejudice or undue suggestiveness. All six pictures were of men with similar characteristics and appearance. The police officer who exhibited the photographs to Mrs. Keyes made absolutely no attempt to influence her identification. Finally, the identification was clear and positive. I am not prepared to hold that this identification was so unnecessarily suggestive as to lead to mistaken identity and a denial of appellant’s right to due process of the law. See Commonwealth v. Smith, 454 Pa. 515 , 314 A.2d 224 (1973).

Appellant argues that reversible error was committed when a police detective testified that the eyewitness, Patricia Keyes, identified appellant initially from a photograph. The law applicable to reference to photographs during trial was set forth in Commonwealth v. *481 Allen, 448 Pa. 177 , 292 A.2d 373 (1972). Our Supreme Court there held:

“The suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference; so too, where it appears on the face of the record that there is an explanation of the police possession of the photograph unrelated to any inference of prior criminal activity.” 448 Pa. at 181 , 292 A.2d at 375 .

Here, appellant argues that the mention of the 3800 photographs and the circumstances of the actual identification raise the inference of prior criminal activity. I do not agree.

Appellant cites numerous cases wherein our courts have concluded that, for one reason or another, the mention of photographs was fatal error. However, these cases are not controlling. The complained of colloquy is as follows:

THE COURT: What was Mrs. Keyes’ part in your arresting the defendant?

MR. KESTENBAUM: Objection, Your Honor.

THE COURT: The objection is overruled. You may answer.

THE WITNESS: Mrs. Keyes was involved in the fact that she had identified a photograph of the defendant.

MR. KESTENBAUM: Your Honor, I will move for a mistrial.

*482 THE COURT: The motion is denied. Your answer was what?

THE WITNESS: She identified a photograph of the defendant, Your Honor.

THE COURT: This was exhibited to her by whom?

THE WITNESS: It was made up by me and exhibited by Detective Hildesheim to her.

THE COURT: Just how was the photograph exhibited ?

THE WITNESS: She was shown approximately thirty-eight hundred pictures in the beginning, and then through my information and investigation it led to Mr. Elmore, and a photograph of him was obtained and it was put in with five other photographs basically fitting his description.

It was shown to Mrs. Keyes, and she immediately picked out the defendant as one of the men she had seen that night.

THE COURT: Thank you.

MR. KESTENBAUM: I just have one question.

THE COURT: Proceed.

BY MR. KESTENBAUM:

Q. You said she was shown approximately thirty-eight hundred photographs prior to the night she identified Mr. Elmore?

A. She was shown approximately thirty-eight hundred and seventy-six, to be exact, the night of the burglary. She was shown them at our headquarters.

Q. And she couldn’t identify anyone?

A. No, she did not pick out anyone in that lineup at that time. (NT 61-63)

I agree that the jury may have inferred that the thirty-eight hundred pictures came from police files. However, the above testimony clearly indicates that the wit *483 ness did not select appellant’s picture from those thirty-eight hundred initially shown her. This fact belies any inference of prior criminal activity. As stated previously, reference to a defendant’s picture does not always mandate reversal. Commonwealth v. Allen, supra.

Lastly, appellant contends that the trial judge committed reversible error when he questioned the detective about the pictures shown Mrs. Keyes, However, I find no abuse of the discretion afforded the trial judge in questioning witnesses.

The trial judge always has the right, and sometimes has the duty to interrogate witnesses, so long as the questioning from the bench neither shows bias or feeling nor is unduly protracted. Commonwealth v. Miller, 442 Pa. 95 , 275 A.2d 328 (1971). Here, the questioning was not unduly protracted, covered only one point, and showed no bias on the part of the trial judge. While the lower court must be extremely careful that his questioning does not unduly influence the jury, Commonwealth v. Lanza, 228 Pa.Super. 300 , 323 A.2d 178 (1974), I see no untoward influence exerted on the jury in the present case.

I would affirm the judgment of sentence.

WATKINS, President Judge, and VAN der VOORT, J., join this opinion.