Commonwealth v. Bey

¶1Judge, concurring and dissenting:

¶2I agree with the Majority’s fine analysis of the issues which it discusses. Nonetheless, I am compelled to dissent because the Majority fails to consider the admissibility of the out-of-court identification. Assuming arguendo (as does the Majority) that the facts in the instant case are sufficient to show a violation of Pa.R.Crim.P. 130 under the three-pronged test of Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974),1 I conclude that the admission at trial of the illegal out-of-court identification was not harmless error. I would, therefore, reverse and remand for a new trial.

¶3In Gilbert v. California, 388 U.S. 263, 272-273, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967), the Supreme Court of the United States addressed the issue of the admissibility of testimony concerning an illegal lineup.2 The Court stated: “That testimony [that the witnesses identified appellant at the lineup] is the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’ Wong Sun v. *206United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction .' . . That conclusion is buttressed by the consideration that the witness’ testimony of his lineup identification will enhance the impact of his in-court identification on the jury and seriously aggravate whatever derogation exists of the accused’s right to a fair trial. Therefore, unless the California Supreme Court is ‘able to declare a belief that it was harmless beyond a reasonable doubt,’ Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, Gilbert will be entitled on remand to a new trial . . .” See also, Commonwealth v. Wright, 242 Pa.Super. 8, 363 A.2d 1133 (1976). The instant case does not involve the constitutional error of an uncounselled lineup as did Gilbert. However, our Pennsylvania Supreme Court has repeatedly held that “all evidence must be excluded which is obtained during an unnecessary delay between arrest and arraignment except that which has no reasonable relationship to the delay whatsoever.” Commonwealth v. Dixon, 454 Pa. 444, 445, 311 A.2d 613, 614 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). In discussing the rationale of the “Futch” rule, Justice Pomeroy noted that the exclusionary rule of Futchand its progeny is directed to the control of police conduct prior to trial and operates irrespective of the reliability or probative value of the evidence excluded. It is hoped that the threat of exclusion will help to deter dilatory or illegal police conduct. Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973) (Dissenting Opinion by Pomeroy, J.).

¶4In the instant case, the Majority assumes that the lineup was illegal because it was obtained as a result of an unnecessary delay. Clearly, testimony at trial that the witnesses *207identified appellant at the lineup came as a result of exploitation of an impermissible lineup. Therefore, it is my belief that unless the admission of the out-of-court identification was harmless error beyond a reasonable doubt, Chapman v. California, supra, appellant is entitled to a new trial. “Before an error may be declared harmless, ‘the Commonwealth must now demonstrate, beyond a reasonable doubt, that there was no reasonable possibility that the evidence complained of might have contributed to the conviction.’ Commonwealth v. Pearson, 427 Pa. 45, 49, 233 A.2d 552 (1967); Commonwealth v. Johnson, 227 Pa.Super. 96, 102, 323 A.2d 813 (1974). The fact that there is sufficient evidence to support a conviction apart from the erroneously admitted evidence does not satisfy the harmless error test. Commonwealth v. Pearson, supra.” Commonwealth v. Tate, 229 Pa.Super. 202, 209, 323 A.2d 188 (1974) (Dissenting Opinion by Hoffman, J.).

¶5In Commonwealth v. Ehly, 457 Pa. 225, 319 A.2d 167 (1974), our Supreme Court applied these principles in analyzing the possible harmlessness of trial testimony concerning the identification of the defendant at an overly suggestive pre-trial lineup. In concluding that this testimony could not be considered harmless, the Court noted that it unfairly bolstered the witness’ in-court identification. See also, Gilbert v. California, supra.

¶6In the instant case, the Commonwealth presented three witnesses: the thirteen-year-old victim, a twelve-year-old eyewitness, and the police officer in charge of the case. All three testified extensively about the lineup in an effort to show that the two children were easily able to make a positive identification of appellant. The witnesses testified to every possible facet of the lineup and many pages of the trial transcript relate solely to a discussion of that event. The lineup testimony clearly bolstered the witnesses’ identification of appellant, and gave unfair weight to their in-court identification testimony. Because of the detail and length of the lineup testimony, I conclude that its admission *208was not harmless error beyond a reasonable doubt. I would, therefore, vacate the judgment of sentence and remand for a new trial.