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decided: October 6, 1977.


NO. 2058 OCTOBER TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 4230 July Term, 1975.


Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.

William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., dissent based on Commonwealth v. Twiggs, Author: Van Der Voort

[ 250 Pa. Super. Page 371]

On July 26, 1975, Susan Locke was returning home from her job at the Herck, Sharp and Dohme Company where she had been working the 4:30 to 12:00 midnight shift. She arrived at her home which is in an apartment complex and pulled into the parking area reserved for the tenants. She alighted from her car and proceeded to walk across the

[ 250 Pa. Super. Page 372]

    parking lot towards her apartment. On her way to her apartment, she passed by an automobile that was also parked in the lot with the engine running. Ms. Locke did not give it much thought and continued to walk to her home. Shortly after passing the automobile, she was aware of someone getting out of it and walking behind her. The individual quickly caught up to her and engaged her in a conversation regarding the whereabouts of Building "H". Ms. Locke who had stopped at this point informed the man that there was no Building "H" in the Townline Apartments, that all of the buildings were designated by numbers and possibly he had the wrong complex. He replied that he was sure that he was looking for Building "H" and she suggested that he try looking in the complex down the road where all of the buildings are designated by letters. At this point in the conversation, Ms. Locke testified that the individual looked puzzled and she turned and started to walk away. After she had taken two steps the man jumped her. Immediately she started to scream and he put his hand over her mouth to silence her. He stated that if she did not keep quiet he would kill her and she mumbled that she would not scream. At this point he attempted to put his hand under her skirt, but was having no success because in fact Ms. Locke was not wearing a skirt, but a pair of shorts with a flap that made it appear to be a skirt. As soon as he attempted this she started to scream and again he threatened to kill her if she did not keep quiet. Having failed to accomplish his less than noble desires at the present location, the individual attempted to lift Ms. Locke up and carry her to a nearby wooded area. Thinking that she might be able to get him to release his hold on her, she suggested to him that they sit there a minute and talk about the situation. This seemed to interest him so he stopped. Ms. Locke testified that at this particular place in the parking area there was a street light and the individual appeared to be content to stand under the light as they spoke to each other. He again attempted to molest her by placing his hand down her skirt, but was frustrated in his efforts due to the particular design of that article of clothing. Realizing the

[ 250 Pa. Super. Page 373]

    futility of this line of attack, he turned his attention to placing his hand inside Ms. Locke's blouse and undoing her bra. At the moment he succeeded in unfastening her bra and placing his hand on her breast a car came into the driveway and as the lights came around he released her and ran down the walk past all of the homes. The approaching automobile stopped and Ms. Locke related to the driver what had just happened to her. The attacker's car was still parked in the lot and Ms. Locke and the man in the automobile which had just arrived on the scene drove over to the attacker's car to examine the license plate. The two went back to the man's apartment where his wife helped calm Ms. Locke and he called the police. The police arrived and what had just transpired was related to them. Shortly after taking Ms. Locke home and obtaining some additional information, the police left to investigate the case. They returned in approximately fifteen minutes and asked her if she would accompany them to a place where they had a possible suspect.

Ms. Locke was taken to another apartment complex by the police where she saw a man and was asked whether or not she could identify him. She identified the man as the same person who accosted her in the parking lot of the Townline Apartments. He was subsequently charged with attempted rape,*fn1 criminal attempt,*fn2 aggravated terroristic threats,*fn3 indecent assault*fn4 and simple assault.*fn5 Appellant was also charged with rape, but that charge was dismissed. Following a trial before a jury the appellant was convicted of attempted rape, indecent assault, attempted simple assault by menace and terroristic threats. Motions for new trial and arrest of judgment were timely filed and denied. Appellant was sentenced to pay the costs of prosecution and

[ 250 Pa. Super. Page 374]

    undergo imprisonment for not less than two (2) years nor more than ten (10) years on the charge of attempted rape. Sentences on the other charges were suspended upon the payment of costs of prosecution by reason of the sentence on the charge of attempted rape. From that judgment of sentence, appeal was taken to this Court.

Prior to trial, the attorney initially representing the appellant*fn6 filed a motion to suppress certain evidence, among which was the evidence of the identification of the appellant in the parking lot by his home shortly after the incident. However, prior to the actual trial, newly assigned counsel withdrew the motion to suppress the evidence concerning the identification. It appears from the record that trial counsel had decided that he would withdraw the motion to suppress pursuant to an arrangement he had with the district attorney whereby appellant's prior criminal record would not be introduced to impeach the appellant's credibility. It was the intention of defense counsel to put the appellant on the stand for the purpose of presenting an alibi defense. Appellant argues on appeal that the issue of identification was so critical to the case that trial counsel's decision to withdraw it necessarily constitutes ineffective counsel.*fn7 On appeal, ...

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