Commonwealth v. Diggs
Commonwealth v. Diggs
Opinion of the Court
On May 14, 1976, appellant, Martin Diggs, was convicted by a jury of burglary and six counts of aggravated robbery. Post-trial motions were argued and denied and sentence imposed. On this direct appeal, appellant raises several assignments of error in rulings of the trial court. Because we find his contentions without merit we will affirm.
Detective Daniel Brooker of the Philadelphia Police Dept, was among those responding to the call and, upon arriving, wrote down descriptions of all perpetrators. Later that day, the victims were shown photographs by Brooker, and Rawes picked the photo of one James Price as being one of the robbers. Appellant’s photo was not included in this array.
Appellant was arrested on April 12, 1973 on suspicion of the robbery and was interviewed by Brooker at the Northeast Police Division. As appellant had a prior arrest record, Brooker ordered a photo of him from the crime lab to be shown to the victims. That photo, however, was delayed in arriving from the crime lab, and so Brooker himself photographed appellant and used that picture for future arrays. On April 13 and 14, George Baldwin and Atwood Purcell, respectively, picked appellant’s photo out of an array shown them by Brooker. Baldwin and Purcell also identified appellant at the Preliminary Hearing and at trial. None of the other victims could identify appellant.
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Citations omitted.)
The Commonwealth need not prove an independent basis beyond a reasonable doubt. Rather, it need only establish its existence by clear and convincing evidence. Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).
In the realm of identifications preceded by an illegal arrest, our courts have held that taint may be purged so long as the witnesses can be found to have had sufficient opportunity for observing the individual during the crime or beforehand. The rationale for such a rule was well stated in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972): “We cannot assume that but for the illegal arrest the appellant would have remained at large indefinitely . No law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been
Instantly, victim Atwood Purcell had two opportunities to observe appellant on the day of the robbery. The first occurred when appellant asked for employment and was three feet from Purcell with excellent lighting conditions (N.T. 40). The second occurred just minutes later during the robbery itself when appellant walked directly to Purcell and pointed a gun. Purcell testified: “I recognized him from seeing him just a few minutes before when he came for a job.” (N.T. 326). Similarly, victim George Baldwin, the only other witness who could identify appellant, was confronted at arm’s length for ten to twenty seconds by appellant pointing a firearm. Nothing was covering appellant’s face and there were no obstructions between Baldwin and appellant. (N.T. 281). Compare, Commonwealth v. Taylor, 472 Pa. 1, 370 A.2d 1197 (1977) (witness’ view of robber obstructed by “mirror-type” sunglasses and a hat). Moreover, Baldwin had been shown “hundreds” of photographs before he was shown any array which includ
The Commonwealth has also abandoned any attempt to justify the uncounseled photo array used to identify appellant before trial.
Appellant also contends the Commonwealth improperly linked him, through a past acquaintanceship, to a man identified as one of the robbers. The salient facts are these: witnesses who could not identify appellant at trial did successfully identify, through photos at trial, one James “Bubbles” Price as being one of the robbers.
Appellant’s remaining contention, that he was denied his right to a speedy trial under Pa.Rules of Crim.P. 1100, was not raised in written post-trial motions, and is therefore waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).
Judgments of Sentence Affirmed.
. The photo identifications of appellant were never introduced at trial. The only identifications used were those at the Preliminary Hearing and at the trial itself.
. The facts in the instant case also serve to answer the objections of Judge Hoffman’s very cogent dissent in Ryan. Judge Hoffman argued that the Garvin Line of cases requires the Commonwealth to show a source of information independent of the illegal arrest that could have led to the legal surest of the defendant. In other words, the rule of “hastened confrontation” should be premised on the factual, rather than the presumed, inevitability of defendant’s arrest. Instantly, the photo used to identify appellant before trial was taken of him after his illegal arrest. But the record shows appellant’s photos from prior arrests were on their way into Det. Brooker’s hands when appellant was arrested. The photos finally arrived a day or two after the victims had already identified appellant (N.T. 38), and would have been shown to the victims' at that time. Hence, appellant’s arrest would have been delayed only a few days.
. Another reason for not always excluding an identification following an illegal arrest lies in the purpose and scope of the exclusionary rule itself. See Garvin, supra. Evidence obtained in violation of the Fourth Amendment is forbidden at trial, not because it is untrustworthy or nonprobative, but to deter law enforcement officials from transgressing an important constitutional safeguard. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Where the connection between the illegal arrest (or search) and the questioned evidence attenuates, however, the deterrent effect of further extension of the Fourth Amendment exclusionary rule becomes, at best, speculative and uncertain. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). At work, of course, is a balancing process, weighing the substantial societal costs of applying the exclusionary rule against commanding respect for the sanctity of a man’s home and privacies of his life. As the Garvin court noted, when the link between an identification and illegal arrest becomes dissipated, the values to a rational system of criminal justice must persist. Stone v. Powell, supra.
. From the record, it appears appellant called his lawyer from the police station approximately one hour before the victims were shown appellant’s photo. The substance of the telephone conversation is not of record.
. The holding of Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), requiring counsel at post-arrest photo displays, was undercut considerably in U. S. v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) holding the Federal Constitution does not grant the right to counsel at such arrays. The continued validity of Whiting, then, is called into question. See Commonwealth v. Claitt, 454 Pa. 313, 311 A.2d 922 (1973). (Whiting “can no longer be considered an accurate statement of federal constitutional law.” Pomeroy, J., concurring). See also Commonwealth v. Scott, 469 Pa. 258, n. 9, 365 A.2d 140 n. 9 (1976). See also Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974).
. We decline to accept appellant’s invitation to rule on whether the exclusionary rule should operate on the defendant’s person when police illegalities are “flagrant”. Appellant’s brief at 19-20. Whatever the merits of such a contention, the record here would not allow us to conclude police action was “flagrant”. See Commonwealth v. Krall, 452 Pa. 215 n. 4, 304 A.2d 488 n. 4 (1973). Compare Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975): “[I]llegal arrest or detention does not void a subsequent conviction.” id. at 119, 95 S.Ct. at 865.
. Price died before he could be brought to trial for these crimes. See Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442, 451 (1977).
Concurring in Part
concurring and dissenting:
I wish to note my adherence to what I believe is the correct interpretation of Garvin, as was demonstrated by Judge HOFFMAN (albeit in dissent) in Ryan : That the question that must be asked is whether the police would have reached appellant by independent means. Here, the police suspected appellant and could have shown his file photograph to the victims without having arrested him at all. Thus the police in fact would have eventually apprehended the defendant through the use of independent means.
But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these. First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy .
McCormick at 438-39 (footnotes omitted).
Here, Price had been identified as one of the robbers, by witnesses who could not identify appellant. The police officers’ testimony regarding appellant’s association with Price encountered the very danger McCormick cites: Whatever relevance it had was outweighed by its tendency to show not guilt, but guilt by association.
The judgment of sentence should be reversed and the case remanded for new trial.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Martin DIGGS, Appellant
- Cited By
- 20 cases
- Status
- Published