Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1970, Nos. 1755 and 1756, in case of Commonwealth of Pennsylvania v. Richmond Turner.
Stephen A. Sheller, and Astor, Weiss & Sheller, for appellant.
Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Spaeth, J., concurs in the result.
[ 237 Pa. Super. Page 203]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Philadelphia County, Trial Division, by the defendant-appellant, Richmond Turner, after conviction in a non-jury trial of forcible rape and aggravated robbery and from the denial of his motions to suppress evidence and post-trial motions.
At 11 P.M. on November 1, 1969, the complainant, a 26 year old teacher of retarded children, was returning home in her car. She parked the automobile two doors from her home and as she started to get out of the car, a Negro male approached her and asked street directions. As she began to direct him, the defendant grabbed her, took $10.00 from her, put a knife to her throat and forced her into an alley. The place where she parked was well lit; the alley was not. He threatened her to shut up, stripped off her clothing and then finally succeeded in having intercourse with her.
In the meanwhile relatives and neighbors hearing the noise were searching for her and the defendant fled as police search lights closed in on the area. The entire incident took approximately 15 minutes. She described her assailant as a Negro male, 19 to 21 years of age, 6 feet tall, 160-170 pounds, medium complexion with a short bush hair cut, and wearing a duffle-type coat with cord fasteners and log buttons. She reviewed her description with a police artist who composed a drawing of the assailant and circulated it.
Two policemen who had received radio instructions to search for the missing woman on the night in question were driving near the area when a Negro male ran in front of their car and fled. They only had a glimpse of
[ 237 Pa. Super. Page 204]
him but identified him as the one described by the victim. The jacket as described by the victim was left at the scene. The fleeing man was not wearing a jacket. On the following day one of the officers spotted the same man and was unable to catch him as he fled. He was certain, in looking at the picture, that he was the same man he saw on November 1st and 2nd.
After a lapse of several months, the police apprehended the defendant and held a lineup. At that lineup, the validity of which is not at issue, the complainant identified the defendant with 85% certainty." She then requested a "voice lineup" at which all participants were behind a cardboard barrier allowing the witness to hear only their voices. She identified the defendant's voice. The case was tried twice. The first guilty verdict was reversed when both sides agreed to a new trial on the ground of incompetency of counsel. A suppression hearing was held before the second trial. The appellant moved to suppress the voice lineup, the two "one-on-one" identifications by the victim and the identifications by the police officers. The petition was denied with the exception of the "one-on-one" identifications of the police officers ...