Commonwealth v. Fant

POMEROY, Justice,

dissenting.

The majority concludes that the lower court abused its discretion in denying a defense motion for the sequestration of witnesses and accordingly awards a new trial. In so doing, I believe that this Court not only invades the province of the trial court, but additionally penalizes the Commonwealth for failing to conduct pre-trial identification procedures when in fact no such duty exists. I respectfully dissent.

Prior to trial, appellant requested that all prosecution witnesses be sequestered because the identification of the defendant was at issue in the case. Such a motion is addressed to the sound discretion of the trial court:

“[t]he lack of adequate room space, the long delays which would inevitably be caused by sequestration and other practical considerations, make sequestration of witnesses ordinarily impractical or inadvisable, except in unusual circumstances. For the foregoing reasons, the question of sequestration of witnesses is left largely to the discretion of the trial Judge and his decision thereon will be reversed *595only for a clear abuse of discretion.” Commonwealth v. Kravitz, 400 Pa. 198, 218, 161 A.2d 861, 870 (1960) (footnote omitted).

See also Commonwealth v. Hamilton, 459 Pa. 304, 311-12, 329 A.2d 212, 215-16 (1974), cert. denied 420 U.S. 981, 95 S.Ct. 1411, 43 L.Ed.2d 663 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Weighing the impracticability of sequestration against the cogency of appellant’s claim, the trial court denied the motion.* I see no abuse of discretion.

In-court identification, except in limited circumstances, necessarily involves “one-on-one” confrontation between the witness and the accused. Nevertheless, this Court has never held that an identification is suspect merely because it occurs in open court. See Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971). Unlike pre-trial identification, an identification which is made during trial is by definition observed by the fact-finder. Whether the recognition of the accused by the witness has the ring of truth and certainty about it, or whether it is a faltering and hesitant one, is for the jury or judge to weigh and determine like any other evidence adduced at trial. So also are the background facts which lend verity or cast doubt upon the witnesses’ ability to make a reliable identification. As Justice (now Chief Justice) Eagen observed in Commonwealth v. Jennings, supra:

“It is urged it was error to permit this in-court identification of Jennings because the attending circumstances were most suggestive and of the nature condemned in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
*596“In our view, Foster and kindred cases do not compel the conclusion that the challenged testimony was erroneously admitted. These decisions proscribe an in-court identification which is the product of an unconstitutionally tainted pre-trial confrontation. Mrs. Toland’s in-court identification was not so prejudicially inspired. It was made under oath while Jennings was represented by counsel. See United States v. Munroe, 421 F.2d 644 (5th Cir. 1970); United States v. Ballard, 418 F.2d 325 (9th Cir. 1969); and, United States v. Moss, 410 F.2d 386 (3d Cir. 1969). Moreover, as disclosed by the testimony, Mrs. Toland had the opportunity of observing Jennings at close range in a well-lighted area for about ten minutes. Additionally, the mode and manner of her identification was fully explored at trial to give the triers of fact ample opportunity to assess the correctness and credibility of her testimony.” 446 Pa. at 306-307, 285 A.2d at 150.

The in-court identification testimony is, of course, subject to the probing of cross-examination and of argument later to the jury. As the trial court in the instant case observed:

“These shootings occurred while a Saturday night crowd was in this lounge. Five witnesses testified they saw defendant do the shooting; five other witnesses testified they saw him there with a gun; and seven additional witnesses said they saw defendant that night at the lounge. Identification evidence was substantial. Each witness was examined and cross-examined as to the basis of his proposed identification and his ability to observe defendant. The prosecution did establish, by clear and convincing evidence, the independent basis for their identification of defendant. They were each subject to cross-examination.”

Whether identification of a suspect by a witness is worthy of belief is a question of credibility for the jury. See, e. g., Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973); Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). When prior to trial a witness is improperly influenced and his identification therefore tainted, a defendant may prevent *597the use of in-court identification by that witness in order that the fact-finder not be deceived as to the source of the witness’s testimony. Such was the issue in Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976) (plurality opinion) —relied on instantly by the majority — which led the plurality to conclude:

“Thus, the testimony of a witness who will point an accusing finger at the defendant during the trial, should be prohibited unless the prosecution establishes by clear and convincing evidence at a suppression hearing that the witness’s proposed trial identification will be reliably based on the witness’s observation at the time of the crime, and that the identification was not induced by events occurring between the witness’s observations at the time of the crime and the witness’s in-court identification.” 466 Pa. at 204, 352 A.2d at 20.

Here, appellant does not argue that events occurring after the criminal episode and before trial influenced any of the prosecution witnesses who identified him at trial.

Equally as serious as the intrusion by this Court upon the discretion of the trial court in the conduct of the trial is the implication in the majority opinion that the prosecution is obliged to engage in pre-trial identification procedures of one sort or another, and that it was remiss in not doing so in this case. Numerous circumstances are imaginable which might make pre-trial identification unnecessary, impossible, impracticable or worse, unreliable, and I know of no duty on the prosecution to conduct them. In light of the numerous constitutional infirmities which have been found to lurk in pre-trial identification techniques, this Court should be slow to mandate their use. I see no purpose to be served in placing upon the Commonwealth an affirmative duty to conduct prior out-of-court identification as a condition precedent to going to trial. See United States v. Dorantes, 471 F.2d 298 (3rd Cir. 1973); United States v. Hill, 449 F.2d 743 (3rd Cir. 1971); United States v. Munroe, 421 F.2d 644 (5th Cir. 1970); United States v. Ballard, 418 F.2d 325 (9th Cir. 1969); Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 *598(1975). This is what the Court seems to be doing by today’s opinion.

O’BRIEN and LARSEN, JJ., join this opinion.

Important in this balancing test must be the fact that appellant’s motion was premised upon a consideration present in most criminal trials — the identification, in court, of the accused as the perpetrator of the crime — and there is nothing alleged to indicate that the particular facts of this case weigh in favor of sequestration. Yet the concern for the impracticability of sequestration recognized in Kravitz and its progeny is surely a dead letter under the rationale of the majority which is arguably applicable to virtually all trials.