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decided: April 22, 1976.


Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1971, No. 3740, in case of Commonwealth of Pennsylvania v. Harold Wright, Jr.


Joel S. Perr, for appellant.

Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Watkins

[ 240 Pa. Super. Page 6]

This is an appeal from the judgment of sentence entered on conviction in a non-jury trial of the charge of rape in the Court of Common Pleas of Allegheny County, Criminal Division, and from denial of post-trial motions.

The single issue presented is whether the Commonwealth showed an in-court identification, independent of, and not tainted by, a prior lineup identification which had been suppressed.

The victim, Ms. Ginyard, was returning from work at 10:00 P.M. on January 29, 1971 in the Wilkinsburg area of Pittsburgh. As she climbed a flight of steps, a man approached her from the rear, shoved her, ran in front and faced her with a gun. The victim and the assailant were ten or fifteen feet from a street light at the head of the stairs during the ten minute encounter and conversation on the stairs. The man then took her through some yards to the area where the crime took place. Following the incident the victim notified the police, describing her assailant as a black male, 5' 10", medium brown skin, wearing a beige trench coat and a floppy hat.

In the course of the next three weeks the victim attended three different lineups. She did not identify any person at the first two but did identify appellant at the third lineup held February 20, 1971. Five other rape victims viewed this third lineup following which the six victims were taken by the police as a group to a large room where four victims, including Ms. Ginyard, identified appellant. However, Ms. Ginyard was the first of the assembled group to identify appellant. Following a hearing, the court ruled any testimony concerning the third lineup would be suppressed. At trial, over the objection of appellant's counsel, the court permitted the victim to make an in-court identification of appellant.

[ 240 Pa. Super. Page 7]

Appellant points to the fact that the victim described her assailant as medium brown in color, wearing a beige trench coat, whereas the police officer recorded the victim's description of her assailant as having dark skin and wearing a dark coat. Reliance is also placed on the fact that the police photo taken at his arrest showed appellant wearing a mustache and goatee, a fact not mentioned by the victim in her description. At trial Ms. Ginyard explained she saw no point in mentioning the mustache as all black men she knew had a mustache.

Where a prior out-of-court identification has been suppressed as constitutionally invalid, the in-court identification must be established on an independent basis by sufficient evidence. United States v. Wade, 388 U.S. 218, 240, 87 S. Ct. 1926, 1939 (1967). The various factors to be considered in determining whether identification has been established on an independent basis are enumerated in Commonwealth v. Futch, 447 Pa. 389, 396, 290 A.2d 417 (1972), quoting from United States v. Wade, supra. Applying these principles here, we find (1) the victim viewed her assailant under a street light for ten minutes, (2) any discrepancy in the victim's description of her attacker was minimal, (3) the victim refrained from making a false identification at two prior lineups, (4) little more than three weeks elapsed between the time of the offense and her identification at the third lineup, (5) the in-court identification was definite and unwavering.

There has been a public outcry against court procedures involving rape victims and it is long overdue that we consider the rights of victims of crimes as well as the rights of defendants. This case is an example of the travail this witness experienced in trying to obtain justice against her assailant. It is true that the defendant in this case was included in a pre-trial lineup and was identified by the victim. This identification was ...

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