# Commonwealth v. Bogan

> Supreme Court of Pennsylvania · October 5, 1978 · 482 Pa. 151

URL: https://www.frixlaw.com/law-library/cases/9650146

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Rhett BOGAN, Appellant (Two Cases)
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 5, 1978
- **Citations:** 482 Pa. 151; 393 A.2d 424; 1978 Pa. LEXIS 955
- **Precedential status:** Published
- **Opinion:** Dissent by Nix
- **Judges:** Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Packel, Packed
- **Cited by:** 34 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/9650146

## How later opinions describe it (automated extraction)

- explaining that the defendant denied any knowledge of the murder until he was advised that he matched the description of the assailant; this development, rather than any exploitation of an illegal arrest, prompted the defendant’s confession
- holding that the defendant’s confession was voluntary and free of any element of coercion where, inter alia, the confession occurred four hours after the arrest

## Opinion text

NIX, Justice,
dissenting.
The majority states in Part IV of its opinion, “We agree that Smith’s pre-trial identification of Bogan amounted to an impermissibly suggestive one-on-one confrontation in the absence of counsel since counsel was not aware that an identification was being made and, therefore, had no opportunity to cross-examine the witness at the time of the identification.” Thus it is unclear whether the majority believes the “confrontation” was illegal because it was “impermissibly suggestive” or because it was “in the absence of counsel”. Whether a confrontation is so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law is a ground of attack upon a conviction independent of any right to counsel claim. Stovall v. Denno, 388 U.S. 293, 302 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). It seems more likely that the majority bases its finding that the “confrontation” was prohibited on the “absence” of counsel, United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), rather than suggestiveness, Stovall v. Denno, supra, since the majority opinion goes on to emphasize that “counsel was not aware that an identification was being made and, therefore, had no opportunity to cross-examine the witness at the time of the identification.” 1
*167 The majority’s finding of “primary illegality”, however, is clearly wrong whether it is based on the Stovall due process right or the right to counsel under Wade/Gilbert An accused has a right to counsel at a police-conducted lineup or one-man showup because it is a “ . . . confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence . ” United States v. Wade, supra at 228, 87 S.Ct. at 1933 (emphasis added). “Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel.” Stovall v. Denno, supra at 297, 87 S.Ct. at 1970 (emphasis added). Likewise, in Stovall the question of whether the defendant had been denied due process of law in violation of the fourteenth amendment arose because of a one-man showup arranged by the police.
In the instant case, as stated by the majority, at 430-431, the witness was attending the suppression hearing as a spectator 2 when he made the observation which the majority finds to be a prohibited confrontation. This “confrontation” was not arranged in any way by the police, and hence there was no “state action” which is required for the fourteenth amendment to come into play. Thus Bogan had neither a fourteenth amendment due process right under Stovall nor a right to counsel which would be made applicable to the states through the fourteenth amendment due process clause, Gilbert v. California, supra, at 271, 87 S.Ct. 1951 .
*168 The majority’s only citation of authority in connection with its finding of a prohibited confrontation is its invitation in footnote 6 to compare Moore v. Illinois, 434 U.S. 220 , 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977), and Commonwealth v. Taylor, 472 Pa. 1 , 370 A.2d 1197 (1977), with this case. Comparison of those two cases clearly shows, as do all the progeny of Wade/Gilbert and Stovall , that the identification procedures found to have violated the defendant’s rights were conducted by the police or some other agent of the state. In this case, the witness decided on his own to conduct a procedure by which he might be able to identify the defendant; this procedure was not conducted at the behest of the police or any other agency of the state. The majority in effect is saying that state action is unnecessary for a fourteenth amendment violation. The very language of the first section of the amendment, 3 which contains the due process clause, belies this contention. And the Supreme Court of the United States has never deviated from its square holding in The Civil Rights Cases, 109 U.S. 3, 11 , 3 S.Ct. 18 , 27 L.Ed. 835 (1883), that the first section of the fourteenth amendment is prohibitory upon the states and the states alone.
The majority reaches an unsound result in this case by ignoring the fundamental requirement of state action. Furthermore, the lack of clarity in the opinion as to precisely which rights of defendant’s were supposedly violated will plunge the whole area of the law of pre-trial identification procedures into hopeless confusion. I am compelled to dissent.
POMEROY, J., joins in this opinion.
. The majority’s reference to counsel’s lack of “opportunity to cross-examine the witness at the time of the identification” causes further confusion. Even if it were necessary to have counsel present under United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967), it would not be counsel’s function to cross-examine the witness at the identification itself. This is apparently a mistaken reference to one of the considerations the Court had in *167 mind in imposing the Wade/Gilbert prophylactic rule — so that counsel, having been present at the identification procedure, would be able to cross-examine the witness effectively concerning that procedure at trial.
. Since it is clear that the witness decided on his own to attend the suppression hearing on the day the allegedly illegal confrontation took place, we need not determine whether sufficient state action could be found if he had attended, for example, pursuant to a subpoena to testify at that time.
. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S.Const., amend. XIV, § 1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650146. Public record. Not legal advice.