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COMMONWEALTH PENNSYLVANIA v. CARNELL HENDERSON (03/14/80)

filed: March 14, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
CARNELL HENDERSON, APPELLANT



No. 1531 October Term, 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1980/1983 March Term, 1977.

COUNSEL

Brian R. Williams, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Hester and Hoffman, JJ. Cercone, President Judge, and Hoffman, J., concur in the result.

Author: Hester

[ 275 Pa. Super. Page 353]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County. Appellant

[ 275 Pa. Super. Page 354]

    was convicted by a jury of simple assault, possession of an instrument of crime, robbery and rape. He was subsequently sentenced to concurrent terms of 9 to 20 years' imprisonment.

The above convictions arose from the following incident:

On February 13, 1977, at approximately 6:00 p. m., the victim was returning home when she was suddenly grabbed around the neck and beaten about her face by a man later identified as appellant. Following the initial beating, appellant dragged the victim to a nearby vacant lot and raped her. After the rape, appellant demanded money, and the victim produced $3.00.

Appellant contends that his in-court identification by the victim was improper due to the fact that the pre-trial photographic identification procedure was unduly suggestive.

The test to determine whether the prosecution has clearly established the independent origin of the in-court identification was expressed by the Supreme Court in Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978), wherein they listed the following factors to be considered:

"(1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) any failure to identify the defendant ...


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