Opinion
J-S48002-19 No. 4 EDA 2019
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. RUBIN HARVEY SPANIER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered November 21, 2018
In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001137-2018 BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J. MEMORANDUM BY BOWES, J.:
Retired Senior Judge assigned to the Superior Court. --------
Rubin Harvey Spanier appeals from the judgment of sentence of fifty-four to 120 months of incarceration, followed by four years of probation, imposed after his non-jury convictions of forgery and criminal attempt to obtain a controlled substance by fraud. We affirm.
The trial court offered the following summary of the evidence offered at trial.
Joseph Fuselli is a licensed pharmacist. On September 15, 2015 he was working at the Aston Pharmacy. On that day an individual presented a prescription for 120, 15 milligram Oxycodone tablets along with a Pennsylvania identification card and a Pennsylvania ACCESS insurance card bearing the name "Rubin Spanier." It is the policy of the Aston Pharmacy to ask a person who presents a prescription for a Schedule 2 controlled substance for identification and in this case the individual offered the photo identification card that is depicted in Exhibit C-1. The card bears [Appellant]'s photo, name and address. Mr. Fuselli
compared the photo identification to the individual who presented the prescription. Mr. Fuselli was a[c]quainted with the prescribing doctor, Doctor Nardella, and he was familiar with the Doctor's signature. His suspicion was immediately aroused because he believed the prescription was not signed by Doctor Nardella. Further, he knew that it was unusual for Dr. Nardella to prescribe such a large quantity of Oxycodone. Mr. Fuselli identified [Appellant] as the person whose image is on the identification card and testified that at the time the prescription was presented he spoke to the presenter and after comparing the photo image to the individual, he advised him that the prescription would have to be verified with the doctor's office before it could be filled. Mr. Fuselli told [Appellant] that he could either wait or he would be contacted when the prescription was ready. A copy of the prescription and the identification card was faxed to Doctor Nardella's office and an employee from that office responded and told a pharmacy employee that [Appellant] was not a patient and the prescription was fraudulent.Trial Court Opinion, 2/8/19, at 2-3 (citations, footnote, and unnecessary capitalization omitted).
The court also heard the testimony of Doctor Guy Nardella, a physician, and Detective Joseph Nardone. Doctor Nardella testified that Exhibit C-1 was a photocopy of a prescription that was faxed to his office from Aston Pharmacy. The prescription identifies Dr. Nardella as the prescribing physician and appears to be from one of his medical practice's watermarked pads. The prescription ordered 120 15 milligram tablets of Oxycodone, a Schedule 2 controlled substance for Rubin Spanier. It bears Doctor Nardella's Drug Enforcement Agency identification number and a signature. Doctor Nardella testified that the affixed signature was not his own. Additionally, he testified that his office had scheduled an appointment for a "Rubin Spanier" but Mr. Spanier did not appear for his appointment. Doctor Nardella has never seen Mr. Spanier as a patient and he has never met him.
Mr. Fuselli identified Exhibit C-1 as a photo copy of a fax that was sent to Doctor Nardella's office. Exhibit C-1 contains a copy of the prescription that was identified by Doctor Nardella and an image of a Pennsylvania non-driver identification card bearing [Appellant]'s image, name and address.
Prior to trial, Appellant had requested an in-person line-up identification. In his motion, noting his failure to appear at his preliminary hearing, he claimed that "[n]either the pharmacist nor any other pharmacy employee has independently identified [Appellant] as the actor whether at the scene, otherwise in person, or through a photographic line-up at the Aston Township Police Department." Motion for Line-up, 6/13/18, at ¶ 6. Indicating that a one-on-one courtroom identification would be unnecessarily suggestive and likely to cause a mistaken identification, Appellant requested "an in-person line-up identification procedure" for the purpose of preserving his constitutional rights "pursuant to the Fifth, Sixth, and Fourteenth Amendments[.]" Id. at ¶ 9.
The trial court denied Appellant's motion, and the evidence detailed supra was offered at a non-jury trial. After the trial court found Appellant guilty of the crimes indicated above and sentenced him accordingly, Appellant filed a timely appeal. Appellant presents to this Court the same single issue that he raised in his timely Rule 1925(b) statement:
Whether the [trial c]ourt abused its discretion in denying [Appellant's] pretrial motion for a lineup where the evidence purportedly connecting him to this offense was weak, and the identification testimony of Joseph Fuselli would have been seriously compromised if evidence was available that he failed to identify [Appellant] at a lineup?Appellant's brief at 5.
We begin with a review of the applicable legal principles. "The decision to grant a request for a lineup is within the sound discretion of the trial court, and such a decision will not be disturbed absent an abuse of discretion." Commonwealth v. Carter , 643 A.2d 61, 75 (Pa. 1994). As we explained in another context, "[a]n abuse of discretion is not merely an error of judgment; rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Commonwealth v. Ross , 57 A.3d 85, 91 (Pa.Super. 2012).
The purpose of granting a motion for a line-up identification "is to provide a setting which is less suggestive than the one-on-one confrontation provided by an in-court identification." Commonwealth v. Sexton , 400 A.2d 1289, 1293 (Pa. 1979). "A criminal defendant has no constitutional right to a lineup. Only in those cases where an identification lacking a strong indicia of reliability is the sole evidence against the defendant should a defendant's timely request for a lineup be granted." Commonwealth v. Blassingale , 581 A.2d 183, 190 (Pa.Super. 1990) (cleaned up). Where a request for a line-up is improperly denied, the remedy is a new trial with a jury instruction that the "defendant's opportunity for [a] more objective identification was denied, and [the] subsequent in-court identification could be viewed with caution." Commonwealth v. Solano , 129 A.3d 1156, 1173 (Pa. 2015).
Appellant argues that, given Dr. Nardello's testimony that he never met Appellant, Mr. Fuselli was the only witness who could provide "identification testimony linking [Appellant] to the crime," he failed to do so "with 'definitiveness,'" and if he also failed to identify Appellant at a pretrial line-up, "the prosecution's case would have been far weaker and [Appellant's] defense more credible." Appellant's brief at 15.
The trial court addressed Appellant's contentions as follows:
Mr. Fuselli's in-court identification was not the only evidence that proved identity. The Commonwealth also offered into evidence copies of [Appellant]'s Pennsylvania identification card and his Pennsylvania ACCESS identification card. See e.g. Commonwealth v. Butler , [512 A.2d 667, 672-73 (Pa. Super. 1986)] (denial of defendant's motion for pretrial lineup was not abuse of discretion, where other evidence linked defendant to crime, identification testimony was reliable and in-court identification had independent basis.) Although [Appellant] testified that he has never been to the Aston Pharmacy and never presented the prescription to Mr. Fuselli his testimony was not credible.5 Mr. Fuselli however, testified credibly that in dealing with [Appellant] he compared the photo identification to the person who tendered the prescription and saw no discrepancy. This testimony would have been in no way undermined if Mr. Fuselli failed to pick [Appellant] from a line-up. As he testified, he had worked at the Aston Pharmacy since the 1970's and Defendant was "one of many patients over the years."
5 [Appellant] testified that in July of 2015 he lost his cell phone and wallet in a McDonald's at Springfield Mall. There is no McDonald's in the Springfield Mall. He never replaced his Pennsylvania identification. He claimed that he held a Commercial Driver's License from the state of Florida and that he used that for identification and at his job delivering and installing windows. However, that identification was not stolen because he claimed that you could not carry both forms of identification at the same time. He admitted to an opioid addiction. These discrepancies were a few among many which rendered his testimony not credible.
Further, . . . [Appellant] suffered no resulting harm from the inability to test Mr. Fuselli's identification pre-trial. The trial court ruled on the pre-trial motion and knew that [Appellant] did not have the opportunity to test Mr. Fuselli's identification in an independent setting. Even so, sitting as the factfinder the Court
found Mr. Fuselli's identification credible and reliable and further found that it proved identity beyond a reasonable doubt. Again, Mr. Fuselli spoke with [Appellant] and advised him that the prescription would have to be verified before it could be filled. At the time he was in possession of the prescription and the photo identification card. Both bore [Appellant]'s name and Mr. Fuselli believed that the customer before him matched the identification photo. The conversation took place in the pharmacy and there has been no suggestion that conditions there created any possibility of misidentification. The trial court is well-acquainted with the suggestive nature of in-court identification but nevertheless found that Mr. Fuselli's testimony established beyond a reasonable doubt that [Appellant] committed the act for which he was convicted.Trial Court Opinion, 2/8/19, at 6-7 (some citations omitted).
Upon review of the record and the trial court's explanation, we cannot conclude that the trial court's decision was an abuse of discretion. Furthermore, even if the court erred in denying Appellant's request, it is clear that the error was harmless, as it would not have impacted the verdict in the case. Therefore, no relief is due.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19