Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County at Nos. 345, 346, 347, 348 December Sessions, 1974. NO. 675 OCTOBER TERM, 1976.
Joseph L. Ditomo, Jr., Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result of this Opinion.
[ 246 Pa. Super. Page 75]
The appellant, Patrick Hodge, files the instant direct appeal to our Court following his conviction after jury trial on charges of robbery, aggravated assault and battery, rape, forcible rape with serious bodily injury, solicitation to commit sodomy, assault with intent to commit sodomy and sodomy. All charges arose out of a sordid incident in which appellant and several other persons savagely attacked, beat, raped and otherwise sexually assaulted a woman in January, 1972. During this incident, the victim was brutally abused and humiliated in a series of events which included torture and threats of disfigurement. Post-trial motions were heard and denied and on December 5, 1975, appellant was sentenced to a term of fifteen to forty years of imprisonment.
The appellant's first claim is that his rights were violated by an unduly suggestive identification procedure. The record shows that during the investigation of the crime, police showed the victim a number of photographs, including a photograph of appellant. The victim identified appellant's photograph as one of the participants in the attack. This was the sole display of such a photograph to the victim.
Prior to trial, appellant filed a motion to suppress the evidence of the pre-trial photographic identification
[ 246 Pa. Super. Page 76]
and the victim's identification testimony at trial. The court granted the suppression of testimony concerning the pre-trial photographic identification. Such ruling was proper since the Commonwealth failed to retain the photographs which were utilized and thus made it impossible under the circumstances to review the fairness of the procedure challenged. See Commonwealth v. Jackson, 227 Pa. Super. 1, 323 A.2d 799 (1974). Contrary to appellant's argument, we also find that the lower court acted properly in permitting the in-court identification by the victim in the instant case.
The record shows that the identification provided by the victim was of an independent source and in no way tainted by the photographic display even if we assume that such single pre-trial photographic identification was improper. The victim expressed no doubt about her belief that appellant was one of her attackers. She had seen him on two occasions prior to the assault. During that unfortunate incident she was in his presence at close range for approximately four hours. She was even aware of his nickname. Under these circumstances, the testimonial identification by the victim was clearly an untainted one and was properly admitted by the trial court. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971).
Next, appellant claims that reversible error occurred when the district attorney allegedly commented adversely on the failure of the defendant to testify when he stated that certain information could only come from the "lips of the defendant." Our review of the record shows that the comment in question, when examined in the context of the whole colloquy in which it occurred, did not comprise an inference or suggestion to ...