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COMMONWEALTH PENNSYLVANIA v. HERBERT LINDSEY (04/09/85)

submitted: April 9, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
HERBERT LINDSEY, APPELLANT



Appeal from the Judgment of Sentence entered April 20, 1979, Court of Common Pleas, Erie County, Criminal Division, No. 1133 of 1978.

COUNSEL

William R. Cunningham, North East, for appellant.

Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.

Wieand, Johnson and Montgomery, JJ.

Author: Johnson

[ 345 Pa. Super. Page 193]

Herbert Lindsey, Appellant, appeals from the judgment of sentence imposed April 20, 1979. Appellant phrases his issue for review as follows:

I. Whether there was sufficient evidence to support the verdict when there was only one witness to the crime, the victim, who was not wearing her glasses at the time of the incident, which occurred at night time in a room only lit by one small night light, and when the victim testified that her assailant was wearing wire-rim glasses and did not use or threaten her with a gun?

For the reasons stated herein we affirm as to the judgment of sentence for rape and burglary and vacate the sentence for crime committed with a firearm.

On July 10, 1978 at approximately 12:15 A.M., Grace Chapin heard a crash at the front door of her apartment. Subsequently, a black male walked into her bedroom, raped her, stole some money and a television set from her, and left. Ms. Chapin later identified her assailant as the Appellant, Herbert Lindsey.

Herbert Lindsey was arrested by the police on July 14, 1978 and charged with burglary,*fn1 rape,*fn2 and committing a crime with a firearm.*fn3

Lindsey proceeded to a non-jury trial held before the Honorable Lindley R. McClelland on December 29, 1978, and continued until February 7, 1979. Following the close of testimony, on February 14, 1979, Lindsey was found guilty of all the charges.

On April 20, 1979, Lindsey was sentenced to a term of seven and one-half (7 1/2) to ...


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