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COMMONWEALTH PENNSYLVANIA v. OMAR H. LEE (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
OMAR H. LEE, APPELLANT



No. 125 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect., as of Jan. Sessions, 1976, Nos. 1997-1999.

COUNSEL

Benjamin Lerner, Defender, Philadelphia, for appellant.

F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 262 Pa. Super. Page 283]

Appellant was tried by a judge sitting with a jury and was convicted of robbery, rape, and involuntary deviate sexual intercourse.*fn1 Post-verdict motions were denied and appellant was sentenced to three concurrent prison terms of eight to twenty years. This appeal followed.

On the night of January 14, 1976, the complainant was walking to her home at 1208 Spruce Street in Philadelphia. Sometime after 11:15 p. m., as she neared the corner of 13th and Spruce Streets, she was grabbed from behind by a man wielding a sharp instrument. He forced her into a nearby alley where she was compelled to partially disrobe and to submit to sexual intercourse and sodomy. Before leaving her, the attacker stole $11 in bills and approximately $2.50 in change from her purse. The entire incident, according to the complainant's testimony at trial, lasted about one half hour, during which time she observed her attacker's face and clothing and heard his voice.

After the attack, the complainant ran to a nearby store and asked that the police be called. Officer John Russell arrived a few minutes later, at about 12:25 a. m. The complainant told him that she had been raped and robbed by a "big, fat, Negro male, wearing a tan coat and very tall." (N.T.M.S. 23). Officer Russell broadcast this information over the police radio.

Soon after receiving this broadcast report, Officers Dennis McNaulty and Edward Mazur saw appellant, a tall, fat, black male in a tan coat, walking west on the 1300 block of South Street, which is some three blocks from the corner of 13th and Spruce Streets. The officers apprehended appellant, placed him in their patrol car, and took him back to the corner of 13th and Spruce Streets for an "on the scene" identification.

The complainant was seated in the rear seat of Officer Russell's patrol car. When Officers McNaulty and Mazur

[ 262 Pa. Super. Page 284]

    brought appellant to within ten feet of her, she exclaimed, "That's him." Evidence of the "on the scene" identification, and also of an in-court identification by the complainant, as admitted at the trial.

I

Before the trial, appellant moved to suppress the "on the scene" identification for suggestiveness. The complainant did not appear at the hearing on the motion, on May 18, 1976, nor did she appear at the continuation of the hearing, on May 20.*fn2 The only testimony concerning the identification was police testimony that appellant was apprehended on the basis of the radio report, that he was taken to the corner of 13th and Spruce Streets, that the complainant identified him there, and that this identification took place no more than one half hour after the attack. (N.T.M.S. 17-31). Counsel for appellant argued to the hearing judge, and argues to us, that since the Commonwealth had not called the complainant it had failed to meet its burden of establishing that the "on the ...


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