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COMMONWEALTH v. BENDER (12/11/73)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 11, 1973.

COMMONWEALTH
v.
BENDER, APPELLANT

Appeals from orders of Court of Common Pleas of Luzerne County, Nos. 1817 and 1818A of 1965, in case of Commonwealth of Pennsylvania v. Donald Lee Bender.

COUNSEL

Michael J. Cefalo and Correale F. Stevens, Assistant Public Defenders, for appellant.

Chester B. Muroski, Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 226 Pa. Super. Page 483]

Appellant Donald Lee Bender appeals from the denial of post-conviction relief following his 1966 convictions

[ 226 Pa. Super. Page 484]

    for robbery and rape.*fn1 At appellant's request, the cases were severed, and separate jury trials were held, both of which resulted in convictions.

Appellant contends that the in-court identification made during the robbery trial was the result of a prior illegal identification of him from a lineup at which he was denied the assistance of counsel. He asserts that this lineup proceeding was therefore violative of his Sixth Amendment right to counsel, as enunciated in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). We find, as did the court below, that the lineup in question was not subject to the Wade guarantee, because the decision in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967), restricted the application of Wade to identifications made after June 12, 1967. Appellant's lineup and trial both preceded that date.

Appellant further contends, apart from the right to counsel issue, that the lineup was overly suggestive, thus denying his constitutional right to due process of law. Our review of the record fails to disclose any evidence to support appellant's contention that because of his manner of dress he stood out from the other men in the lineup.

Appellant attacks his rape conviction claiming that the judge's charge to the jury was so prejudicial that he was denied due process of law. This issue was raised for the first time in this present appeal. It was never raised in prior post-conviction proceedings, nor on previous appeals to this Court. Since appellant has failed to "prove the existence of extraordinary circumstances to justify his failure to raise the issue" as required by the Post Conviction Hearing Act, Act of Jan. 25, 1966, P. L. (1965) 1580, Sec. 4, 19 P.S. ยง 1180-4 (b) (2), he is deemed to have waived this issue.

The orders below are affirmed.

Disposition

Orders affirmed.


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