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decided: September 23, 1974.


Appeal from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1973, No. 201, in case of Commonwealth of Pennsylvania v. James Kinnard.


Hugh S. Rebert, Assistant Public Defender, for appellant.

Morrison B. Williams, Deputy District Attorney, and Donald L. Reihbart, District Attorney, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 230 Pa. Super. Page 136]

Appellant, James Kinnard, was arrested on January 3, 1973, and charged with rape and robbery. The charges rose out of an incident which occurred on December 29, 1972, at approximately 7:35 P.M., when four men entered the book store in which a female clerk was working alone. One individual, wearing a green knit cap and tan jacket, entered the store slightly ahead of the others and asked the clerk if the store carried the book Hiroshima. The lighting in the store was quite good and the clerk was standing face-to-face with the man, so the clerk had ample opportunity to observe at least this particular individual. While the clerk was talking with this man, the other three approached her from behind and one of them placed a cold, hard, flat

[ 230 Pa. Super. Page 137]

    object against her neck and instructed her to enter a more remote part of the store. The clerk was then raped by two of the men and money was taken from a cash register in the store. Five days after the crime, appellant was arrested while wearing a green knit cap and tan jacket. At the trial, the clerk positively identified appellant as the man who had first entered the store, though she was unable to say whether or not appellant was one of the men who actually raped her.

In a trial by jury, appellant was found guilty on May 17, 1973, of rape and robbery. Appellant filed a motion for a new trial and a motion in arrest of judgment, alleging that the verdict was contrary to the evidence, contrary to the weight of the evidence, contrary to law, and that the evidence was insufficient to sustain the verdict. Pursuant to leave of Court, additional reasons were subsequently filed to support the motions. The motions were denied after argument before the Court en Banc, and appellant was sentenced on December 17, 1973, to consecutive terms of five to ten years on the rape conviction, and two and one-half to five years on the robbery conviction. The case is before us on direct appeal.

Though he failed to raise this issue in the lower court, appellant now argues that a pre-trial confrontation between the victim and himself was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a violation of due process. Appellant was exhibited to the victim at a line-up which included the three other men who were involved in the crime, plus four to six additional people. The victim was unable at that time to identify appellant as one of her attackers. At a subsequent preliminary hearing, appellant was brought into the magistrate's office handcuffed to a man whom the victim had previously identified as having been involved in the crime. At this time, the victim identified appellant with these words: "I

[ 230 Pa. Super. Page 138]

    think this man on the end."*fn1 When asked on direct examination at the trial how certain she was that appellant was one of the men involved in the crime, the victim replied: "I am very certain this is the man who entered the book store first." On cross-examination, when asked by appellant's attorney about her identification of appellant at the preliminary hearing ("I think this man on the end"), the victim stated that she thought she had identified appellant "more strongly than that." Instead of moving to have this identification testimony of the victim stricken from the record (alleging that the in-court identification was the result of an unduly suggestive, and hence unconstitutional, confrontation), appellant's counsel apparently hoped that the jury would consider the evidence presented and find that the victim had been led by the prosecution into making a false identification. Absent a showing of incompetency or the presence of exceptional circumstances, neither of which we find here, counsel's strategic decisions will be binding on his client. Commonwealth v. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973); Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967). In addition to not objecting at trial to the admission into evidence of the victim's in-court identification of appellant, appellant's counsel ...

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