Appeals from the Judgments of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. 4969 September Term, 1973 and No. 4782A June Term, 1973. Nos. 69 and 160 April Term, 1975.
Joel S. Perr, Pittsburgh, for appellant.
Robert L. Eberhardt, Robert L. Campbell, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
This opinion deals with two separate appeals by the same party. Although the facts and the issues raised in both cases are highly similar, different crimes, victims, lineups, suppression hearings and trials, all on different dates, are involved. We therefore consider each appeal separately, on its own merits.
[ 242 Pa. Super. Page 10]
APPEAL AT NO. 69 APRIL TERM, 1975
The appellant was convicted by a jury of rape*fn1 and statutory rape.*fn2 Following the denial of post-trial motions, appeal was duly taken to this court.
The first point of error raised by the appellant is that a pre-trial lineup identification was improperly admitted into evidence against him. Appellant contends that he was denied his constitutional right to the presence of counsel at this lineup,*fn3 and that the resulting identification should have been suppressed. Appellant advanced the same argument at the suppression hearing in this case. The suppression court, after hearing extensive testimony from the victim and the officers involved in the lineup, as well as receiving evidence regarding the height, weight, color, hair style and clothing of the other lineup participants, decided that the lineup identification was admissible because the lineup itself had been fair and had produced no prejudice to the appellant. The court was clearly not convinced that the appellant had waived his right to counsel at lineup, but found the police conduct in this case to be a "technical violation" not requiring suppression because the lineup itself was "fundamently fair."
In Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), our supreme court defined the right to lineup counsel in this state, holding that "the policy behind the Wade rule applies with equal force to all confrontations conducted after arrest." 458 Pa. at 171, 320 A.2d
[ 242 Pa. Super. Page 11]
at 353. Thus the denial of counsel at a post-arrest line-up is an error of ...