No. 1611 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, No. 650-August Term, 1979 653
Richard W. Hoy, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Montemuro and Watkins, JJ.
[ 300 Pa. Super. Page 87]
The instant case is taken as an appeal from judgment of sentence against appellant, Joseph Dean. Appellant filed post-trial motions which were argued and denied and which presented three issues of alleged error for our review: did
[ 300 Pa. Super. Page 88]
the lower court err (1) in denying a motion to suppress identification evidence; (2) in permitting an officer to testify as to identification made at the line-up; (3) in failing to grant mistrial for prosecutional misconduct? We find no error in the record and we affirm the judgment of sentence.
A summary of the testimony reveals the following facts: the complaining witness left her place of employment after 12:30 a. m., walked to her automobile and entered it. Before she could close the door, the appellant appeared and begged her to assist him by giving a "jump" to his disabled vehicle. She assented, and drove at his direction to a dead-end street. There he forced her to engage in oral sex and robbed her of forty-three dollars. Appellant threatened to find the complainant and kill her if she told anyone about the incident; he demanded identification to make his threat credible.
The complainant sought help and reported the facts immediately to a police officer and then to a detective. Eight days later, she recognized the defendant when he entered her place of business while assisting with a delivery of milk. The complainant succeeded in delaying the appellant and his co-worker long enough to allow the police to arrive and make an arrest. Later she selected the appellant as her assailant from a line-up.
The appellant's first argument is that this line-up was prejudicial and that his motion to suppress should have been granted. Upon review of the record, however, we find that the lower court's adjudication on motion to suppress is detailed and convincingly presents facts and law that show no prejudice to appellant. His counsel was present and participated in the arrangement of the line-up; the other participants resembled him in size, coloring, and clothing; no suggestive remarks were made by police officers to the complaining witness.
It is clear that the complainant had an opportunity to observe the appellant's face before and during his sexual assault. Her spontaneous identification of him the next week was ...