No. 24 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7505774.
Lester G. Nauhaus, John H. Corbett, Jr., Asst. Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Robert A. Zunich, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino and Larsen, JJ., concur in the result.
In the early hours of Sunday morning, July 6, 1975, Thurman Everson was shot to death in his home. The assailant also encountered Mr. Everson's wife and rendered her unconscious by a blow to the head. On July 13, 1975, appellant, Jerome Harris, was arrested in a one-room apartment, wherein a revolver was seized which was later determined to be the murder weapon.*fn1 After a jury trial, Mr. Harris was found guilty of murder of the third degree and was ultimately sentenced to serve a term of imprisonment of ten to twenty years. This direct appeal followed.*fn2
The first assignment of error relates to Mrs. Eula Everson's photographic identification of appellant as the assailant. It is argued that the procedure used in presenting the photographic array was impermissibly suggestive, see Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and that the introduction at trial of this out-of-court identification requires the award of a new trial. Specifically, it is argued that the photographic array consisted of 25 pictures of which 12 were duplications. The doubles, two pictures of the same individual, presented a front and side view. There was only a single picture of Mr. Harris in the group of photographs displayed. It is this distinction which appellant
seizes upon to support his charge that the procedure was impermissibly suggestive.*fn3
This issue has not been properly preserved for review here. Rule 323(b) of the Pennsylvania Rules of Criminal Procedure provides:
(b) Unless the opportunity did not previously exist, or the interests of justice otherwise require, such application shall be made only after a case has been returned to court and not later than ten days before the beginning of the trial session in which the case is listed for trial, except that in any judicial district having continuous trial sessions said application shall be filed not later than ten days before the day the case is listed for trial. If timely application is not made hereunder, the issue of the admissibility of such evidence shall be deemed to be waived.
Although appellant did file a pre-trial suppression motion in this case pursuant to Rule 323, that motion did not relate to the out-of-court photographic identification. Furthermore, this evidence was not objected to at the time it was introduced at trial. The failure to present this constitutional issue in a timely pre-trial application requires us now to conclude that the question has been waived. Commonwealth ...