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COMMONWEALTH v. BEASLEY (06/21/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 21, 1974.

COMMONWEALTH
v.
BEASLEY, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, Nos. 1115-1119 of 1972, in case of Commonwealth of Pennsylvania v. Lorenzo Beasley.

COUNSEL

Thomas E. Harting, for appellant.

Michael H. Ranck, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 229 Pa. Super. Page 181]

Appellant was tried before the Honorable Anthony R. Appel and a jury on two counts of sodomy, assault and battery, assault with intent to maim, assault with intent to ravish, and burglary. The jury returned verdicts of guilty on all charges. From the sentences imposed thereon, this appeal was taken.

The Commonwealth witnesses testified that on the evening of June 30, 1972, Connie Kuhn and Joseph Smith were lying in bed together in Mrs. Kuhn's home in Lancaster, Pennsylvania. A Negro male entered the dwelling and climbed the stairs. The victims first saw the intruder as he stood in the well lighted hallway adjacent to the bedroom. He then entered carrying a steak knife in each hand. The intruder assaulted the couple and forced each of them to perform sodomy with him. At the first opportunity, Mrs. Kuhn dove through her bedroom window and summoned her neighbors. The assailant then fled.

On the morning of July 1, 1972, the police showed the victims a display of approximately 40 photographs from which both picked appellant's photograph as depicting their assailant. On the basis of this information, appellant was arrested on the following day.

[ 229 Pa. Super. Page 182]

The only issue raised on this appeal is whether the failure to provide appellant with an attorney when the victims made the photo identification tainted the subsequent identifications made by the victims at trial.*fn1 However, appellant neither moved to suppress the identifications, nor objected to their admission at trial. Under the circumstances, appellant cannot raise this issue on appeal. Pa. R. Crim. P. No. 323(b);*fn2 Commonwealth v. Williams, 443 Pa. 85, 90, 277 A.2d 781 (1971).

Judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.


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