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COMMONWEALTH v. MINIFIELD (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
MINIFIELD, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1971, Nos. 596 to 598, inclusive, in case of Commonwealth of Pennsylvania v. Joseph Minifield.

COUNSEL

Jack J. Levine, for appellant.

Linda West Conley, Assistant District Attorney, with her James Taylor Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Spaeth, J., absent.) Opinion by Hoffman, J. Spaeth, J., took no part in the consideration or decision of this case.

Author: Hoffman

[ 225 Pa. Super. Page 150]

Appellant was tried before the Honorable Fred W. Davis*fn1 and a jury and found guilty of sodomy, aggravated robbery and burglary. From the judgments of sentence, this appeal was taken.

Appellant contends that he is entitled to a new trial for the following reasons: (1) the court below erred in not suppressing the victim's line-up and in-court identifications: (2) he was denied a fair trial because he was not provided a transcript of testimony of the preliminary hearing; and (3) he was denied the right to counsel of his choice by the refusal of the court to grant a continuance to retain private counsel.

At noon on October 29, 1971, the victim's apartment located at 4800 Pine Street in Philadelphia was

[ 225 Pa. Super. Page 151]

    forcibly entered. The victim who was asleep at the time awoke and saw a Negro male enter her daughter's bedroom. When he saw the victim, he entered her bedroom, laid on top of her, and forced her to remain in a prone position for three to four minutes.

The man then arose, tore some bedsheets and partially blindfolded her.*fn2 After threatening to kill her with a butcher knife, he forced her to have oral and anal intercourse with him. The man then took two televisions and a wrist watch and left the apartment.

The victim summoned the police who took her to the hospital for examination.*fn3 Following her release, she gave a description of the assailant to the police. Later, she viewed hundreds of photographs and described him to a police artist who made a composite drawing. The descriptions given may be summarized: negro male, 19 to 25 years old, medium build, pock-marked face, mustache split in the middle, and small scars near the forehead and eyes.

On November 3, 1971, an article in the Philadelphia Evening Bulletin reported the apprehension of two men (one of whom was appellant) suspected of having committed a burglary in the victim's neighborhood. The article included photographs of the two men and detailed their criminal records. After a friend alerted her to the story, the victim identified the photograph of appellant and immediately called the police. ...


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