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decided: October 27, 1978.


No. 172 October Term, 1977, Appeal from Judgments of Sentence in the Court of Common Pleas of Philadelphia County, Pennsylvania, Trial Division, Criminal Section at Nos. 1066-1070 of 1975.


Eugene H. Clarke, Jr., Philadelphia, for appellant.

Eric B. Henson, 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. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 259 Pa. Super. Page 469]

The instant appeal arises from appellant's conviction for robbery, attempted rape and two counts of aggravated assault. On appeal appellant argues: (1) The court erred in failing to suppress identification testimony as well as physical evidence linking appellant to the crime; (2) The court erred in refusing to dismiss the case under Rule 1100; and (3) The evidence was insufficient to sustain the convictions on attempted rape and aggravated assault. We disagree and will affirm.

At approximately 5:30 A. M. on August 31, 1976, Joan Kirby alighted from a trolley at Broad Street and Allegheny Avenue in Philadelphia, having completed one leg of her journey to work. Ordinarily Miss Kirby would catch the "C-bus" northbound on Broad Street to work, but this day she was behind schedule and thought she had missed the bus, so she decided to take the subway. She noticed as she

[ 259 Pa. Super. Page 470]

    deboarded the trolley that two black males got on, while a third black male, subsequently identified as appellant, did not go with them. A few moments later as Miss Kirby waited for the train on the subway platform, appellant came down the steps and stood on the illuminated platform some distance from Miss Kirby. Soon he approached her and asked her for a match, which she gave him. As he lit a cigarette the lighted match further illuminated his face. He then departed up the steps. Seconds later he ran down the steps and shouted that there was a "C-bus" coming. When Miss Kirby asked if the bus were traveling northbound, and appellant responded affirmatively, Miss Kirby began to run up the steps to Broad Street. She only reached the first landing when appellant grabbed her from behind, covered her mouth and told her to keep quiet or he would kill her with a knife he was carrying.*fn1 He took her purse and emptied the contents onto the steps. Dissatisfied with the small amount of change he found, he asked for more money and punched Miss Kirby in the face. Indeed, every time Miss Kirby uttered a sound appellant punched her in the face. Eventually Miss Kirby gave appellant nine dollars from her pants' pocket, but appellant still was not satisfied. Appellant then tore Miss Kirby's shirt and pulled down her bra exposing her breasts. As he began to unbuckle her pants, she broke free and he began to choke her. Once again she broke free only to be caught again by appellant. By then however, bleeding profusely, she had managed to reach Broad Street, although appellant still had her by the neck. Fortunately, a police officer patrolling the area heard her screams and saw her in appellant's clutches. At the same moment appellant saw the patrol car and took flight. While radioing for help the patrolman pursued appellant to a nearby alley, and the block was surrounded by police responding to the call. The alley was searched and appellant was found hiding in a yard. A violent struggle ensued

[ 259 Pa. Super. Page 471]

    during which one police officer received a broken wrist when appellant, attempting to escape, pushed him off a wall.

In the meantime Miss Kirby had been taken to Temple Hospital, and had been in the emergency room for ten minutes when the police arrived with appellant, whom she immediately identified as her assailant. Furthermore, appellant fit the description she had earlier given the police, including the clothing he was wearing. A search of appellant revealed nine dollars in cash precisely in the denominations Miss Kirby had been carrying.

Appellant first contends that the one-on-one confrontation with Miss Kirby at the hospital was illegal, and that Miss Kirby's identifying him there as well as at trial should have been suppressed. We are not persuaded by appellant's argument, however. As appellant maintains, it is certainly true that identification evidence is inadmissible if it is obtained as the result of a procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Jenkins, 232 Pa. Super. 523, 335 A.2d 463 (1975). On the other hand the courts also recognize that confrontations between victim and suspect shortly after the occurrence of a crime may be desirable from the standpoint of the suspect as well as from that of law enforcement authorities. Commonwealth v. Jenkins, supra; United States v. Davis, 399 F.2d 948 (2d Cir. 1968), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 449 (1968); Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). Hence, while one-on-one ...

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