The Superior Court recently decided the case of Commonwealth v. Mbewe, No. 1004 WDA 2017 (February 1, 2019), holding that the photo array shown to a witness to the robbery was not unduly suggestive, even though the photos did not match the description provided by the witness. 

Mbewe was found guilty on both counts of robbery and conspiracy; he was acquitted of all other charges. He received an aggregate sentence of three to six years’ incarceration to be followed by three years’ probation. 

Of the issue raised on appeal, Mbewe claimed that the trial court erred in failing to grant his motion to suppress identification which resulted from an impermissibly suggestive photo lineup. 

Although this post is limited to the suggestive photo line-up issue, after reviewing all issues presented by Mbewe, the Superior Court affirmed his Judgment of sentence.


The Superior Court first set forth the general principals governing a photo line-up as follows: 

  • Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances;
  • Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but suggestiveness alone does not warrant exclusion;
  • Identification evidence will not be suppressed unless the facts demonstrate that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification; and,
  • 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.


In Mbewe’s case, he did not argue that the photographs themselves were unduly suggestive. That is, he did not claim that his photograph stood out from the other photographs in the array in some manner, thereby calling undue attention to his photo. Rather, he argued that the police based the photo array “on the abstract created by the victims’ post-incident description.” However, the Superior Court disagreed with his characterization of the array, noting that the photos did notmatch the victim’s description; rather, they included an array of photos depicting faces similar to Mbewe’s, rather than the description provided by the witness. 

The Superior Court then noted that when compiling an array to meet due process standards, the police are required to place photos in the array of individuals who resembled the suspect… not the abstract created by [a victim’s] post-incident description [of the suspect]. 

Accordingly, the Court found no fault with the police providing a photo array to the victim that included Mbewe and persons with similar facial characteristics to his, even though Mbewe did not fit the physical description supplied by Ms. O’Leary.

In this case, the police were told that the perpetrators were one Caucasian and one African-American. Ms. O’Leary told the police she believed a person named “Loti” – no last name – may have been involved in the crime. Joe Lewis was positively identified by name. The police independently were aware that Joe Lewis, a Caucasian, was known to associate with a man named Loti Mbewe, an African-American. The police would have been remiss to ignore this information, despite the fact that Mbewe did not specifically match the overall physical description provided by Ms. O’Leary. 

The Court held that “the fact that the photo array did not match the physical description provided by the victim does not make the array impermissibly suggestive, and therefore, unreliable.” 

In light of the above, the Superior Court concluded that Mbewe was not entitled to relief on this aspect of his claim. 



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