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COMMONWEALTH PENNSYLVANIA v. DAVID CLAY (06/13/88)

submitted: June 13, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID CLAY, APPELLANT



Appeal from the Disposition of Delinquent Child in the Court of Common Pleas of Montgomery County, Juvenile Division, No. 1986 - 929

COUNSEL

Mary M. Zell, Philadelphia, for appellant.

Patricia E. Coonahan, Assistant District Attorney, Cheltenham, for Com., appellee.

Tamilia, Johnson and Cercone, JJ. Johnson, J., concurs in the result.

Author: Tamilia

[ 376 Pa. Super. Page 427]

Appellant David Clay appeals an April 29, 1987 Order which found him in need of treatment, supervision or rehabilitation and, pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq., ordered him to be committed to Cornwells Heights Youth Development Center, Sex Offender Program. This Order followed an April 14, 1987 adjudication of delinquency of appellant; the court stated that after a hearing, it found beyond a reasonable doubt appellant did commit the acts of possession of an instrument of crime and prohibited offensive weapon, aggravated assault, and rape.

The facts are as follows. Around 9:00 p.m. on May 10, 1986, Michelle S. (now Michelle T.), a graduate student at Tyler School of Art, arrived with her fiance Richard T. at the campus to attend an art show while her fiance was to work in the art studio. As they entered the parking area, Michelle had to stop her car because a young man was "pacing back and forth in front of the driveway" (N.T. 3/6/87, p. 20). The driveway was well lit, and as Michelle

[ 376 Pa. Super. Page 428]

    was within ten (10) feet of the young man (who she identified as appellant), she could see his face (N.T. at 21). At approximately 11:00 p.m., Michelle returned to her car to get a sweater and was grabbed from behind, thrown to the ground and dragged some distance with a meat cleaver at her neck.

Michelle gave a description of the attacker to police shortly after the attack in which she described the rapist as a black male, 15-17 years old, 135 to 140 pounds, thin build, box type hair cut, wearing a gray "Jeff" cap, dark clothing, white undershirt and sneakers. A composite picture was prepared based on descriptions given by Michelle and Richard T. Michelle was shown a photo array on December 15, 1986 by Detective Jacob Gearhardt of the Cheltenham Police from which she selected appellant's photo from the second folder and identified him as her attacker. She became very upset when she saw the photo of appellant and asked if she could see another photo of him so she could be absolutely sure. On December 19, 1986, Michelle looked at another array and again selected appellant (N.T. at 49-52). Appellant was taken into custody on December 19, 1986, pursuant to an affidavit of probable cause for his arrest. Both Michelle and her husband Richard T., at different times, observed a line-up on February 2, 1987 and both selected appellant (N.T. at 53; N.T. 4/1/87, pp. 29-31). Appellant, whose grandparents' residence abuts one corner of the Tyler campus, was 16 years of age at the time of the rape. He was, therefore, tried as a juvenile offender, after the Commonwealth's petition to transfer the case to adult court was withdrawn. After several hearings, he was adjudicated a delinquent on April 14, 1987, and the April 29, 1987 Order in question was issued. Notice of appeal was filed on May 28, 1987.

On appeal appellant first contends a "serious miscarriage of justice may have occurred" in this case. He argues his motion for new trial should have been granted because the verdict is contrary to the weight of the evidence in that: 1) the single distinctive characteristic of the rapist, his box-type

[ 376 Pa. Super. Page 429]

    hair cut, is one which appellant David Clay does not wear; 2) the composite drawing carefully chosen by the victim in no way resembles David; 3) results of an FBI analysis, requested by the Commonwealth, of David's hair and that from the rapist's cap, demonstrates they are not the same; 4) evidence ...


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