Commonwealth v. Green

*249HESTER, Judge:

This appeal was taken from a judgment of sentence entered on June 12, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania. Appellant, George A. Green, a/k/a, Richard Green, was tried before a jury on charges of Robbery, Violation of Uniform Firearms Act and Possessing Instruments of Crime. A verdict of guilty was returned on Robbery. Motions for New Trial and in Arrest of Judgment were filed and denied. Appellant was sentenced on the Robbery Bill to a term of incarceration of not less than five years, nor more than twenty years.

The pertinent facts can be summarized briefly. On January 29, 1979, in late afternoon, appellant and his accomplice, Robert Lee Bryant, Jr., entered the Homestead Steelworkers Federal Credit Union Office on Grant Street, in the Borough of Munhall, County of Allegheny, Pennsylvania. While Bryant stood at the front door brandishing a sawed-off shotgun, appellant vaulted over the teller’s counter and removed cash and checks from three teller drawers totaling $2,673.08. Appellant and Bryant then ran from the scene. Appellant was not apprehended until two months later.

It is appellant’s first contention that the trial court erred in refusing to grant an evidentiary hearing on the prosecutor’s alleged use of peremptory challenges to unconstitutionally exclude black jurors. In Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981), the Pennsylvania Supreme Court was called upon to review a lower court’s finding of the discriminatory use of peremptory challenges. In Futch, supra, the first venireman was a forty-seven year old black man who, following lengthy voir dire, was struck by the Commonwealth’s first exercise of its peremptory challenges. Defense counsel promptly noted for the record the exclusion of a black man, requested dismissal of the panel and demanded a hearing on whether the Allegheny County District Attorney systematically used peremptory challenges to exclude blacks from juries where the defendant is black.

*250Although the parties agreed in Futch, supra, that peremptory challenges are presumed to be exercised by the Commonwealth in order to compose fair and impartial juries, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh. denied 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965), they disagreed as to what burden of proof applied to rebut the presumption. The Commonwealth projected the burden of proof espoused in Swain v. Alabama, supra, i.e., that there must be proof of the prosecutor’s systematic use of peremptory challenges to exclude blacks from juries over a considerable period of time. Conversely, the defendant asserted that the less restrictive Wheeler-Soares standard was applicable. Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The Wheeler-Soares standard requires proof of the discriminatory use of peremptory challenges only in the particular case at issue.

The Futch court refused to establish whether the Swain or Wheeler-Soares standard should apply in Pennsylvania. Instead, it simply held that the defendant failed under both standards to establish a prima facie case of the Allegheny County District Attorney’s discriminatory use of peremptory challenges. In so holding, the court noted:

The prosecutor’s peremptory challenge of one black prospective juror, the first and only venireman to be questioned on individual voir dire, accompanied by opinion evidence as to the practice of some individual assistant district attorneys in past trials, is insufficient under the standard of either Swain or of Wheeler and Soares to raise the inference of improper use of the peremptory challenge by the Commonwealth. Thus, it must be concluded that the trial court erred in finding that appellee had established a prima facie case of discriminatory exclusion of black prospective jurors. Commonwealth v. Futch, 492 Pa. at 368, 424 A.2d at 1235.

*251Despite appellant’s extensive effort to prove that the Allegheny County District Attorney utilizes peremptory challenges for discriminatory purposes 1, the Futch court found no such discriminatory practice. This is particularly significant in light of the fact that the Futch trial occurred one month following appellant’s trial; consequently, appellant would have us remand for an evidentiary hearing to review the alleged discriminatory practice of the Allegheny County District Attorney over the same period of time considered in Futch, supra. The lower court proceeding in Futch, supra, was lengthy and thorough, and the Futch court explicitly found no discrimination. We would be remiss, indeed, to remand for yet another hearing on an already-settled issue.

Absent a ruling from our Pennsylvania Supreme Court to the contrary, we are of the opinion that the presumption that a prosecutor is properly exercising his peremptory challenges is overcome only where the defendant demonstrates that the prosecutor, in a number of cases, unjustly excludes blacks from every jury. Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Green, 264 Pa.Super. 472, 400 A.2d 182 (1979); Commonwealth v. Jones, 246 Pa.Super. 521, 371 A.2d 957 (1977). Whether the prosecutor discriminated against blacks in the selection of the jury in the instant matter is relevant only in the context of determining the continuous, unjust exclusion over an appreciable period of time. Green, supra. It has been settled that the Allegheny County District Attorney does not, in case after case, exclude blacks; therefore, the lower court properly denied an evidentiary hearing.

Next, appellant argues that the prosecution incited the jury to deliberate with fear and bias. Specifically, appellant complains that the prosecutor’s reference to “society’s victims of crime” during closing argument was an attempt to *252undermine the presumption of an accused’s innocence and deprive him of a fair and impartial trial.

Although prosecutorial misconduct is never countenanced by the courts, it is not proper to order a new trial at every instance of a prosecutor’s improper remarks. Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489 (1981). Only those remarks which preclude objective deliberation by implanting bias and hostility for the defendant in the jurors’ minds will result in mistrial. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Smith, supra. We do not find the prosecution’s remarks to have risen to that level. Moreover, the objection was sustained and the jury was instructed to disregard the prosecution’s reference to victims of crime. Many prejudicial and inciteful remarks are effectively blunted with prompt and complete instructions from the court. Commonwealth v. Fultz, 478 Pa. 207, 386 A.2d 513 (1978).

Appellant also contends that it was error not to suppress the picture identifications of appellant as the result of the suggestive nature of the photo arrays. Two days following the incident, a special agent of the Federal Bureau of Investigation displayed the same eight photographs to three clerk-tellers of the Credit Union who were working during the robbery. Appellant’s photograph was not among the group of eight, and none of the three clerk-tellers selected the perpetrator’s picture.

On March 1, 1979, one month following the incident, the same clerk-tellers individually viewed six photographs, and the three employees each selected appellant’s photograph. These same six photographs were displayed to two customers of the Credit Union who were present during the robbery; they too selected appellant’s photograph.

According to appellant, these picture identifications were tainted due to the fact that three from the first photo array of eight photographs were among the six photographs in the second array. Presumably, these three photographs, as a result of being dismissed earlier, were certain to be *253eliminated upon a second cursory examination. Moreover, two of the remaining three photographs were of men wearing glasses, and five Commonwealth witnesses agreed that the perpetrator did not wear glasses. These facts, according to appellant, unjustly led the witnesses to choose his picture as a result of the suggestive array and not as a result of their independent recollections of the perpetrator at the scene.

Although an out-of-court identification may be suggestive, a subsequent in-court identification of an accused as the perpetrator is admissible provided it has a basis independent of the tainted identification. U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Connolly, 478 Pa. 117, 385 A.2d 1342 (1978); Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976). The Commonwealth must establish the independent basis for the in-court identification by clear and convincing evidence. Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976). In determining whether the Commonwealth has met this burden, and thereby overcame the illegality of the out-of-court identification, the following criteria are considered: 1) the circumstances under which the witnesses viewed the actual crime; 2) the witnesses’ degree of attention; 3) the accuracy of the description prior to the suggestive photo array; 4) the level of certainty in identifying the perpetrator; and 5) the lapse of time between the crime and illegal confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976).

In light of these criteria, the suggestiveness of the photo array is overcome by the independently-based, in-court identification. Commonwealth witnesses and Credit Union employees, Donna Morrison and Sharon Abrams, observed appellant’s full face for a few seconds immediately after he leaped over the counter to the employees’ side. Donna Morrison viewed his full face from a distance of one foot. Both women observed appellant remove cash and *254checks from three drawers. June Leeds, another clerk-teller, watched appellant during the progress of the robbery. The three women were consistent and reasonably accurate in their identification of appellant as 5' 2" to 5' 6", having a slight build, light Negro skin, wide nose and freckles and being in his early twenties. They also described him as wearing a tan, waist-length coat and a dark-colored tassel cap. The testimony of Roy Orluk and William Tomko, two United States Steel Co. employees who were transacting business at the scene on January 29, 1981, corroborated the description and characteristics testified to by the three employees.

The totality of the circumstances reveals that the witnesses were accurate in their description of appellant, solid in their convictions, attentive during the robbery and in excellent positions to note important details. These factors overcome any suggestiveness in the photo array. They also overcome the suggestive nature of appellant’s appearance at the preliminary hearing in handcuffs and leg shackles. For these reasons, we affirm.

Judgment of sentence affirmed.

SPAETH, J., files a dissenting opinion.

. Defense counsel produced eighty-two witnesses, consisting of defense attorneys, former assistant district attorneys from Allegheny County, two trial judges and former criminal defendants.