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COMMONWEALTH PENNSYLVANIA v. JAMES LEROY SUTTON (10/29/81)

decided: October 29, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES LEROY SUTTON, APPELLANT



No. 80-1-141, Appeal from the Judgment of Sentence of the Court of Common Pleas of Beaver County, Pennsylvania, Criminal Division, entered July 2, 1980, at No. 627 of 1979.

COUNSEL

J. David Ungerman (Court-appointed) Erie, for appellant.

Michael J. Veshecco, Dist. Atty., Frank Scutella, Asst. Dist. Atty., Erie, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Roberts

[ 496 Pa. Page 93]

OPINION OF THE COURT

This is an appeal from a judgment of sentence of the Court of Common Pleas of Beaver County imposed on verdicts of guilty of murder of the first degree and robbery.*fn* Appellant, James Leroy Sutton, seeks a new trial on the basis of two alleged evidentiary errors. We reject appellant's claims of error and, hence, affirm.

In the early mornings hours of August 19, 1973, three men burglarized and robbed a small bar and its patrons in Erie,

[ 496 Pa. Page 94]

Pennsylvania. The entire incident lasted several minutes. One of the men wore a red ski mask and was armed with a shotgun. During the robbery, the gunman shot and killed James T. Hogan, a patron of the bar. Thomas McBride, another patron, attempted to disarm the gunman after the shooting. The gunman's ski mask came off during his fight with McBride at which time McBride found himself face to face with the gunman. After a brief struggle, McBride was struck from behind on the head, became momentarily stunned, and gave up the fight.

That morning, McBride gave police a description of all three robbers. McBride's description of the gunman included the gunman's race, height, weight, color of hair, and hair length.

Appellant was arrested on August 23, 1973. Subsequently, appellant was included in a lineup which was recorded on videotape. Counsel for appellant was present at the lineup. On September 11, McBride viewed this taped lineup and identified appellant as the gunman who had worn the red ski mask.

At trial, McBride testified that he had previously identified appellant from the out-of-court videotaped lineup. McBride also made an in-court ...


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