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Commonwealth Vs. Hoke
1. When a defendant has filed a motion to suppress the burden is placed on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible.
2. Although an appellate court in this jurisdiction has not ruled that a confession waives a challenge to an identification made through a photographic array or in-court identification, there is some persuasive authority and good logical reasons to find that it does.
3. The fact that counsel was not present when the photographic arrays were shown to the alleged victims is not fatal to the Commonwealth.
4. Exclusion of identification testimony is proper when improper police conduct results in an impermissible suggestive confrontation. Photographs used in line-ups are not unduly suggestive if the suspect’s picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics.
5. The existence of one possibly suggestive element in an identification procedure does not automatically require suppression of the identification evidence obtained through that procedure.
6. Prior failures to identify, and even misidentifications, do not affect the admissibility of later, independently based identifications.
7. The primary evil to be avoided when addressing an identification is the substantial likelihood of irreparable misidentification.
8. The factors to evaluate when addressing an identification challenge is the totality of the circumstances. The court should consider: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention;
3) the accuracy of the witness’s prior description of the criminal; 4) the level of certainty demonstrated by the witness at the confrontation; and 5) the length of time between the crime and confrontation.
9. Suggestiveness alone will not forbid the use of an identification if the reliability of a subsequent identification can be sustained. To sustain its reliability the Commonwealth must establish that in-court identification resulted from the criminal act and not the suggestive encounter.
10. Even a brief view in good lighting satisfies the factor of the victim observing the suspect at the time of the crime.
In the Court of Common Pleas of Adams County, Pennsylvania, Criminal, Nos. CR-79-2008, CR-83-2008, CR-211-2008 and CR- 367-2008. COMMONWEALTH OF PENNSYLVANIA VS. BETSY ANN HOKE.
Sarah Castillo, Esq., for Commonwealth Peter Foster, Esq., for Defendant Kuhn, P.J., November 12, 2008
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