Commonwealth v. Fulmore, 2011 Pa. Super. 132

Opinion by Ford Elliott, P.J.:

The victim was approached by two men, one of whom threatened him with a gun.  He tried to flee, but the second man shot him.  He was taken to the hospital for treatment.  A week later, he described his attackers to the police.  Thereafter, a police officer showed the victim two photo-arrays, each of which contained a photograph of one of the two men suspected of being his attackers.  Neither of the two men matched the description given by the victim.  The victim nevertheless identified the two men, who were then charged.

Prior to trial, the defense moved to suppress the out-of-court identification as suggestive.  The trial court agreed, and the Commonwealth failed to file an interlocutory appeal.  Months later, the defendant moved to exclude an in-court identification because of the supposed suggestiveness of the out-of-court identification.  The trial court again agreed, and the Commonwealth appealed both rulings.

Before addressing the merits of the Commonwealth's brief, the Superior Court noted that the appeal from the initial ruling was facially untimely. Nevertheless, the Court was willing to extend the merger rule to permit the time-barred appeal:

. . . because the outcomes of the suppression motions were interdependent, we find that the appeal from the order deciding the second part of the suppression motion is timely for purposes of appealing both the out-of-court and in-court identifications suppressed by the trial court.

On the merits, the Court expressed puzzlement over the trial court's suppression of the photo-array; it conceded that the photos of the attackers did not resemble the description the victim had given, but flatly rejected this as a grounds for suppressing the identification.  The Court also rejected the defendant's argument that the victim had been told that he was included in the array: even if true, the Court held that this would not have rendered the array unduly suggestive.  Nor did the Court find the victim's hospitalization and use of pain medication relevant to the suppression decision.  Finally, the Court ridiculed the defendant's suggestion that the victim's choice was actuated by unconscious but perceptible cues from the Detective.

Having reversed the trial court's suppression of the out-of-court identification, the Court concluded that the in-court identification could not be the product of an unduly suggestive array, and reversed that decision as well.

Read the Opinion.