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COMMONWEALTH v. RAY (01/24/74)

decided: January 24, 1974.

COMMONWEALTH
v.
RAY, APPELLANT



Appeal from order of Superior Court, Oct. T., 1971, No. 329, affirming judgment of sentence of Court of Common Pleas of Berks County, Sept. T., 1968, No. 254, in case of Commonwealth of Pennsylvania v. John William Ray.

COUNSEL

Arthur E. Grim, with him William R. Bernhart, and Austin, Speicher, Boland, Connor & Giorgi, for appellant.

Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen and Mr. Justice O'Brien concur in the result. Mr. Justice Roberts, Mr. Justice Nix and Mr. Justice Manderino dissent.

Author: Pomeroy

[ 455 Pa. Page 45]

John William Ray, the appellant, was convicted by a jury of attempted robbery, burglary, and conspiracy to commit both of those offenses. Post-trial motions were denied and appellant was sentenced to pay a fine of $200 and costs of the prosecution, and to serve a prison term of 2 to 4 years. On appeal, the Superior Court affirmed, per curiam, without opinion.

The Commonwealth's case rested principally upon the testimony of one Frank Kenton, the sole witness to the events which formed the basis of these convictions. In the prosecution's case-in-chief, Mr. Kenton described the events of the crime as well as the identification which he had made of the defendant 50 minutes after the crime occurred. This identification was challenged both in the trial court and on appeal on the ground that it violated the defendant's right to counsel under the Sixth Amendment of the Constitution of the United States. We granted allocatur limited to this issue, and now affirm the order of the Superior Court affirming the judgment of sentence.

[ 455 Pa. Page 46]

The Commonwealth's evidence established that on June 13, 1968, at approximately 2:20 a.m., a gunman entered the well-lighted office of the Klein Motel in Berks County and demanded money. When the night clerk, Frank Kenton, denied having any money in his possession, the intruder began rifling the drawers behind the desk. Upon hearing Kenton call for help, the would-be robber took flight, pursued by the clerk. Kenton saw the man he was chasing enter the passenger side of a car parked 150 feet down the highway and drive away.

Mr. Kenton immediately reported the incident to the police, describing the intruder as a 22-23 year old male, with dark, bushy hair, wearing a tan jacket and dark trousers; the car was described as a 1957 or 1958 Plymouth. Soon thereafter, a 1957 Dodge car was stopped for speeding. As a passenger in the car appeared to meet the description of the Klein Motel intruder, the police got in touch with Kenton to see if he could make an identification. Kenton accompanied a police officer to a parking lot where the vehicle and its three occupants had been detained. Approaching the car, Kenton saw John Ray sitting on the passenger side of the front seat. He placed his hand on Ray's shoulder, stating to the police that this was the person who had attempted to rob the motel. As above stated, approximately 50 minutes had elapsed between the episode at the motel and the identification of Ray by Kenton at the parking lot.

Such was the evidence adduced at trial as to the pre-trial identification. It is appellant's position that the identification was constitutionally infirm because he was neither informed of his right to have counsel present, nor was he afforded a formal line-up. He argues, accordingly, that the testimony concerning the identification at the parking lot should have been excluded. In support of this proposition, appellant relies

[ 455 Pa. Page 47]

    upon the decisions of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178 (1967), as well as decisions in this Court and the ...


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