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COMMONWEALTH PENNSYLVANIA v. JAMES LUMB (06/12/81)

filed: June 12, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES LUMB, APPELLANT



No. 1297 October Term, 1979, Appeal from the Judgment of Sentence imposed of the Court of Common Pleas, of Philadelphia County, Criminal Division, at Nos. 302, 303, 307 January Session, 1979

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

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

Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., concurs in result.

Author: Brosky

[ 288 Pa. Super. Page 13]

Appellant was convicted of robbery, burglary and conspiracy. On May 23, 1979, he was sentenced to serve from two to ten years imprisonment.*fn1 Post-verdict motions were filed and denied. This appeal followed. Lumb contends that evidence of an identification of him after police had specially transported him to the scene of the crime involved in the proceeding should be excluded. He asserts: (1) that the circumstances surrounding the identification were too suggestive and (2) that the evidence obtained related to the offense in this proceeding should be excluded because there was no probable cause for his arrest. We affirm the decision of the trial court.

On December 20, 1978, Ms. Kathryn Weiland was assaulted and battered by four men who broke into her residence at the Barclay Hotel in Philadelphia. They stole five hundred dollars and a lamp from her.

A hotel security officer, Stephen Mensing, observed the men as they ran through the lobby of the hotel. Mensing had no idea at the time that Weiland had been assaulted or robbed. Mensing saw the men only for a few seconds as they ran out of the hotel. He noted appellant was wearing a dark blue coat and that he had unusual facial features

[ 288 Pa. Super. Page 14]

    which distinguished him from the other men.*fn2 At trial, Mensing identified Lumb. He testified:

Q. Now, you say that you recognized the defendant as the man that was there. What about the defendant do you recognize?

A. Well, he has kind of an ...


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