Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2006

Thomas v. Varner
Precedential or Non-Precedential: Precedential

Docket No. 04-2856




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Recommended Citation
"Thomas v. Varner" (2006). 2006 Decisions. Paper 1672.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1672


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                                                                       PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 04-2856


                                    CLAYTON THOMAS

                                             v.

   BEN VARNER, SUPERINTENDENT; THE DISTRICT ATTORNEY OF THE
 COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
                        PENNSYLVANIA,

                                         Appellants


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 02-cv-04778)
                     District Judge: Honorable Bruce W. Kauffman



                                    Argued April 22, 2005


             Before: ROTH, FUENTES, and STAPLETON, Circuit Judges.

                           (Opinion Filed: November 4, 2005 )

Helen T. Kane (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
1421 Arch St.
Philadelphia, PA 19102-1582

ATTORNEYS FOR APPELLANTS

Daniel Silverman (Argued)
1429 Walnut St.
Suite 1001
Philadelphia, PA 19102

ATTORNEY FOR APPELLEE

                                          ____

                   ORDER AMENDING PUBLISHED OPINION


FUENTES, Circuit Judge

     IT IS NOW ORDERED that the published Opinion in the above case filed
November 4, 2005, be amended as follows:

       On page 16, beginning on the tenth line of the page, delete the two sentences and
footnote that follow “Id.” Replace the deleted text and footnote with the following:

      Here, Fuller testified that the detective insisted that he look “real good” at
      the photograph of Thomas after failing to get an identification on several
      prior occasions. The Commonwealth notes that the detective’s trial
      testimony conflicted directly with Fuller’s account of the identification.
      However, the Commonwealth declined to develop the record further before
      the Magistrate Judge, despite the opportunity to do so. Accordingly, the
      Commonwealth did not establish by a preponderance of the evidence that
      the photo array was not improperly suggestive. At the hearing before the
      Magistrate, the relevant issue was whether or not a motion to suppress
      would have been successful in the state court if Thomas’s trial counsel had
      made such a motion. If trial counsel had filed a suppression motion, the
      burden would have been on the Commonwealth to establish that Fuller’s
      identification was not the result of undue suggestiveness. See Pa. R. Crim.
      P. 581(H) (“The Commonwealth shall have the burden of going forward
      with the evidence and of establishing that the challenged evidence was not

                                            2
         obtained in violation of defendant’s rights.”); Commonwealth v. Culp, 

, 581 (Pa. Super. 1988). Because the Commonwealth did not carry
         its burden, the Magistrate did not err in accepting Thomas’s position.


                                   By the Court,


                                   /s/ Julio M. Fuentes

Dated:         January 18, 2006




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