Commonwealth v. Orr

¶1*877DISSENTING OPINION BY

¶2I respectfully dissent. I believe that this case presents insufficient evidence as to the perpetrator’s identity to support a conviction.

¶3In my 20 plus years on the appellate bench, I have upheld numerous convictions in cases where a victim’s identification of the perpetrator becomes equivocal by time of trial. As set forth by the Majority, in such a situation, the initial street identification by the victim, supported by police testimony, has been sufficient to support a conviction. However, I believe the facts of this case are so unique as to require a different result.

¶4Instantly, appellant understandably attacks the identification evidence presented by the Commonwealth. Although, according to Officer Flynn, Mr. Thompson identified appellant at the site where he was being held, every subsequent effort to get Mr. Thompson to identify appellant as a participant has been unsuccessful. The night of appellant’s arrest, Mr. Thompson was asked to look at police photographs, but could not identify either assailant. (Notes of testimony, 1/28/09 at 39.) Later, a lineup was conducted in which appellant was placed, yet Mr. Thompson did not identify appellant as one of the two robbers. (Id.) At appellant’s preliminary hearing, Mr. Thompson failed to identify appellant as a participant in the robbery (id. at 40), and at trial, when pointedly asked if he recognized “anyone from that night,” Mr. Thompson candidly replied “No.”1(Id. at 32.) When cross-examined, Mr. Thompson more emphatically indicated his inability to identify appellant during the following exchange:

Q.: And you didn’t identify him at the preliminary hearing, correct?

A.: I don’t know. I have not seen this man before.

Q.: And what you are here saying is you don’t even think this is the guy? You’re not sure; correct?

A.: All I could say, I see the red beard. I see his face. I cannot say he did it. I didn’t see his face.

¶5Id. at 40.

¶6In reality, the Commonwealth rests its identification evidence solely on the testimony of Officer Flynn and not Mr. Thompson. Officer Flynn testified that when she responded to the call of a suspect in custody, she asked Mr. Thompson to look over to the spot where appellant was being held. Officer Flynn’s testimony reveals that when Mr. Thompson did so, he responded “that’s him,” referring to appellant.

¶7If the above was the whole of the evidence of record, our standard of review would compel me to accept the identification testified to by Officer Flynn. This is so because an on-the-scene identification under certain circumstances may be adequate even though a later in-court identification is equivocal. Here, however, the in-court testimony of Mr. Thompson is actually unequivocal as to the fact that he is unable to identify appellant. Mr. Thompson candidly provided greater elucidation as to the how and why of that positive identification testified to by Officer Flynn. At trial, on cross-examination, when questioned about the initial identification, the following exchange took place:

Q.: And you said that basically what you did, the Commonwealth kept saying you made an identification.

*878You didn’t make an identification of the person’s face that evening? You made an identification of clothing; correct?

A.: Correct.

Q.: And I believe you were saying to the court at some point that anybody could have clothing on?

A.: The same kind, yes.

Q.: That’s right.

And I believe you also said on direct examination that as far as you were concerned, that person might just have been guilty of wearing the same type of clothing; correct?

A.: Exactly.

Q.: Because you don’t know if that person is in fact the person who did it; correct?

A.: Absolutely.

Q.: And in fact, when you went to the lineup, would it surprise you to know that Mr. Orr was at the lineup that evening on May 7th, 2008?

A.: Yes, I saw him there.

Q.: So you did see him but you couldn’t say he was the one—

A.: I can’t say it’s him. I can’t say it’s him now because I did not see his face to say at one point it was him. The only thing that he is guilty of to my knowledge is dressing the same way.

¶8Id. at 40-42. After additional questioning, Mr. Thompson reiterated that he identified appellant that night due to the way he was dressed and the fact that he had a red beard:

Q.: Sir, once again, you cannot say that Mr. Orr is the person who robbed you; correct?

A.: No. Absolutely.

Q.: Because you never saw his face?

A.: I never saw his face, no.

Q.: And once again, in your opinion he was guilty only of wearing similar clothing; correct?

A.: Same or similar clothing and had the red beard.

¶9Id. at 51.

¶10Mr. Thompson’s testimony at trial makes it clear that the identification testified to by Officer Flynn was made simply due to the similarity in clothing and the presence of a red beard. While attacks upon identification testimony normally go to the weight of the evidence and not to the sufficiency of the evidence,2 it has further been stated that where the identification evidence is demonstrated to be so inherently unreliable as to make a verdict based upon it one of conjecture or surmise, it will be found insufficient. Id., at 1245 (noting the decision in Commonwealth v. Grahame, 333 Pa.Super. 224, 482 A.2d 255 (1984), “held that the store clerk’s identification of Grahame was too tenuous to establish, beyond a reasonable doubt, that he was the third robber.”). I believe the present case is one of those rare cases where the identification testimony has been demonstrated to be so unreliable as to make a verdict based upon it one of conjecture or surmise. Mr. Thompson’s testimony established that he had very little opportunity to observe appellant, and Mr. Thonipson further candidly admitted that he could not identify appellant as the perpetrator of the crime in question. Thus, the evidence must be deemed to be insufficient to support the conviction despite the testimony of Officer Flynn which *879was purely based upon Mr. Thompson’s ability to identify appellant.