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COMMONWEALTH PENNSYLVANIA v. MICHAEL S. HENRY (02/05/82)

filed: February 5, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
MICHAEL S. HENRY, APPELLANT



No. 431 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division Philadelphia County, February Term, 1979, Nos. 240-248.

COUNSEL

Clifford B. Cohn, Philadelphia, for appellant.

Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Montemuro and Watkins, JJ.

Author: Montemuro

[ 295 Pa. Super. Page 49]

Appellant, Michael S. Henry, was found guilty by a jury of robbery,*fn1 criminal conspiracy,*fn2 simple assault,*fn3 involuntary

[ 295 Pa. Super. Page 50]

    deviate sexual intercourse,*fn4 kidnapping,*fn5 and possessing an instrument of crime.*fn6 Post-trial motions were denied and appellant was sentenced to a term of imprisonment totaling five (5) to ten (10) years. This direct appeal followed.

On January 1, 1979, the victim parked her car near the Albert Einstein Medical Center in Philadelphia where she worked as a nurse. At about 6:40 A.M., as she proceeded to walk to the hospital, she was approached by a man whom she later identified as appellant. Appellant pulled a knife on the victim and ordered her back into her car. Appellant attempted to drive the victim's car but failed to get it started. He then told the victim to drive.

Meanwhile, another man walked toward the car and got into the back seat. Appellant directed the victim to drive for several minutes and then ordered her to stop. The man in the back seat grabbed her purse, emptied the contents and took approximately fourteen ($14.00) dollars from her wallet. After a short discussion with appellant, the man left.

While still parked, appellant then forced the victim to fellate him. The victim periodically pleaded with the appellant to stop. Appellant refused and during the entire twenty (20) minute episode, continuously threatened the victim with a knife. As daylight began to break across the area, appellant again directed the victim to drive. Subsequently, while stopped at a traffic light, appellant jumped out of the car and fled. The victim returned to the hospital and reported the incident. On the basis of the description given by the victim, appellant was arrested nearby at 6:30 p. m. that same evening.

The appellant raises six issues for review in this appeal: (1) whether the suppression court erred in finding the victim's

[ 295 Pa. Super. Page 51]

    in-court identification admissible; (2) whether trial counsel was ineffective for failing to raise issues in post-trial motions which have been raised in this appeal and by not properly locating alibi witnesses; (3) whether the trial court properly denied appellant's motion for a continuance; (4) whether there was prosecutorial misconduct in closing remarks made by the district attorney; (5) whether the prosecutor discriminatorily used peremptory challenges to exclude blacks from appellant's jury;*fn7 and (6) whether the Commonwealth's failure to perform a scientific test to compare the victim's saliva with the saliva found on the pants taken from appellant constituted a withholding of exculpatory evidence.*fn8

The appellant's trial counsel, in a post-verdict motion for a new trial, raised only the identification issue. Issues not raised in post-verdict motions are deemed waived and are not properly preserved for appellate review. See Pa.R.Crim.P. 1123(b); Commonwealth v. Carter, 463 Pa. 310, 344 A.2d 846 (1975). However, since appellant has raised an ineffective assistance claim in that post-trial counsel failed to include the issues in the post-verdict motion now raised in this appeal, we will decide those questions solely for the purpose of resolving the contentions of ineffective representation. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). For the reasons set forth below, we remand the case to the ...


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