No. 463 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Montgomery County, at No. 2289 April Term, 1975.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Bert M. Goodman, Assistant District Attorney, Lansdale, and William T. Nicholas, District Attorney, Norristown, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result.
[ 249 Pa. Super. Page 335]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County by the defendant-appellant, James Marshall, after conviction by a jury of felonious restraint, criminal coercion and simple assault. Post-trial motions were denied and he was sentenced to not less than two and one-half years nor more than five years imprisonment.
The facts are as follows, as viewed in the light most favorable to the Commonwealth: At 8:30 A.M. on Sunday, March 18, 1975, Barbara Whitby, aged 14, was on her way to church when the defendant, wearing a flowered shirt, purple pants and a nylon stocking over his head grabbed her from behind and took her into an alley towards a parked 1967, blue Cougar automobile. She was yelling throughout the time of the incident and in fear of her life. Officer McClincy came on the scene and observed the defendant dragging
[ 249 Pa. Super. Page 336]
the struggling girl toward a car. There was no other person in the area. Upon seeing the police officer, the defendant released the girl, pulled the stocking off his head and ran. The officer followed in the patrol car but lost the defendant. He then returned to the alley and parked behind the Cougar. He placed the girl in the patrol car and started off on foot with his police dog.
Officer McClincy then observed two police officers run into a walkway near the Armory Building. One of the officers had seen the defendant running and halted him. From a distance of five feet, he observed the defendant throw what proved to be a nylon stocking to the ground before placing his hands on the wall as ordered by the officers.
At trial Barbara Whitby and Officer McClincy testified that they had a clear and unobstructed view of the defendant when he removed the stocking and positively identified the defendant as the assailant. They were corroborated by the other officers. Each of the Commonwealth witnesses testified and described the defendant as clothed in a flowered shirt and purple pants. The officer testified that the stocking admitted into evidence was the same one thrown on the ground by the defendant. The Cougar car was owned by the defendant's girlfriend with whom he was living at the time of the incident.
The appellant's contention that the verdict is contrary to the evidence and against the weight of the evidence is without merit.
The appellant further contends that the court erred in refusing to suppress the evidence of the stocking. Even counsel for the defendant conceded that the stocking was found six feet from where the defendant was apprehended. The evidence of Officer McClincy as to the stocking was unrebutted and the ...