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COMMONWEALTH PENNSYLVANIA v. MICHAEL ANDREW HORWAT (09/25/86)

decided: September 25, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MICHAEL ANDREW HORWAT, APPELLANT



Appeal from the Order of the Superior Court of Pennsylvania, entered March 29, 1985 at No. 1468 Pittsburgh 1983, Affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Westmoreland County, entered November 30, 1983 at No. 1344 C 1981. 343 Pa. Super. 610; 494 A.2d 480 (1985).

COUNSEL

Anthony W. DeBernardo, Jr., Richard H. Galloway & Associates, P.C., Greensburg, for appellant.

John J. Driscoll, Dist. Atty., Mary Beth Taylor, Dennis A. Kistler, Asst. Dist. Attys., Office of Dist. Atty., Greensburg, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., joins the Majority Opinion and files a separate concurring opinion.

Author: Flaherty

[ 511 Pa. Page 400]

OPINION OF THE COURT

This is an appeal from a memorandum opinion and order of the Superior Court which affirmed a judgment of sentence entered by the Court of Common Pleas of Westmoreland County. Commonwealth v. Horwat, 343 Pa. Super. 610, 494 A.2d 480 (1985). In a trial by jury, the appellant, Michael A. Horwat, was convicted of attempted rape, aggravated assault, terroristic threats, and indecent assault.

At trial, evidence was introduced that appellant had changed his appearance between the time of the criminal incident and the time of trial. Specifically, as was conceded in appellant's own testimony, appellant had cut his hair and reduced his weight prior to trial. There was no evidence, however, that he changed his appearance prior to a photo lineup and an actual lineup, where he was identified by Commonwealth witnesses. In fact, as the trial court stated: "In the instant case, however, several independent witnesses, including the victim herself, without hesitation or contridiction [sic] identified the defendant from photo lineups, physical lineups, and in-court identifications."

The primary issue*fn1 in the instant appeal concerns the propriety of a certain jury instruction which the trial court issued regarding the change in appellant's appearance. The charge was as follows:

A jury may infer guilt from the fact that the defendant changed or modified his appearance prior to trial where identification is an issue.

Appellant contends that the trial court's instruction permitting an inference of guilt from a change in appearance was,

[ 511 Pa. Page 401]

    under the circumstances of this case, erroneous, and that trial counsel was ineffective in failing to object to the ...


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