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COMMONWEALTH PENNSYLVANIA v. JAMES MCGAGHEY (03/27/86)

decided: March 27, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JAMES MCGAGHEY, APPELLANT



Appeal from the judgment of sentence of the Court of Common Pleas of Northampton County, Criminal Division, at No. 732-1981. Lower Court action affirmed by the Superior Court of Pennsylvania at No. 3620 PHL 82. Pa. Super. , 487 A.2d 440 (1984)

COUNSEL

W. Thomas Anthony, Jr., Bethlehem, for appellant.

Donald B. Corriere, Dist. Atty., Bethlehem, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., filed a concurring opinion. Papadakos, J., filed a dissenting opinion.

Author: Zappala

[ 510 Pa. Page 226]

Opinion

This appeal arises out of convictions for robbery, simple assault and conspiracy. The facts may be summarized as follows: On May 21, 1981, at approximately 9 p.m., Thomas Talbot offered Robin Gentry a ride to the Victaulic Plant in Easton, Northampton County. Upon arrival at the parking lot, Talbot and Gentry were surrounded by four or five people, including Gentry's boyfriend, John Miller, two or three other white males and one black male. Miller questioned

[ 510 Pa. Page 227]

Talbot as to why he was with Miller's girlfriend. A scuffle ensued, during which time Miller directed someone to take Talbot's wallet. When Talbot felt his wallet being removed from his pocket, he turned around and noticed that the black man who had been standing behind him was removing his wallet. The entire incident lasted approximately one minute although Talbot only viewed the black man for about two seconds as he came from behind and removed Talbot's wallet. Talbot further indicated that while the parking lot was lit, the incident did not occur directly under any light. He characterized the conditions as not very dark but not very well lit either.

Subsequently, Talbot reported the incident to the police describing his assailants as wearing "dark clothing" and being "younger people". He failed to indicate that the black assailant had a beard and mustache. Furthermore, Talbot had never seen any of his assailants prior to the robbery. Finally, Talbot indicated that prior to the incident he drank probably more than eight mugs of beer.

Gentry and Miller were both arrested. Upon questioning, both indicated to the police that the black man who participated in the crime was named "Joe Ball". Subsequently, Gentry indicated that Ball's nickname was "Peanut". At no time did either Gentry or Miller indicate that Joe Ball and the Appellant were the same person. It was the disclosure of this nickname rather than Talbot's description that resulted in the Appellant's arrest. After his arrest, Appellant was never identified by Talbot either in a lineup or photographic array. Talbot actually saw the Appellant for the first time at the preliminary hearing which was held one and one half months after the incident.

At the preliminary hearing, Talbot was in the magistrate's office before the Appellant was brought into the office. Appellant was brought in wearing handcuffs and was seated at defense counsel's table. The Appellant was the only black man in the room. During the hearing, Talbot then identified the Appellant as his assailant.

Prior to trial, the Appellant filed his omnibus pre-trial motion requesting the suppression of ...


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