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COMMONWEALTH PENNSYLVANIA v. DERRICK RUSH (07/10/89)

decided: July 10, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DERRICK RUSH, APPELLANT



Appeal from the June 18, 1987 judgment of Superior Court of Pennsylvania, No. 2543 at Philadelphia 1986 affirming the August 21, 1986, judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division at No. 724-26, 728 and 785 September Term 1985.

COUNSEL

Paul J. Downey, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Suzan Willcox, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, Former Justice, did not participate in the decision of this case.

Author: Nix

[ 522 Pa. Page 381]

OPINION

After a bench trial, Derrick Rush was convicted of aggravated assault, criminal conspiracy, reckless endangerment, possession of an instrument of crime and a violation of the Uniform Firearms Act. He was sentenced by the Honorable Sandra Mazer Moss to five to ten years' imprisonment, consistent with the prescribed mandatory minimum sentencing for crimes committed with a handgun, and a consecutive five-year period of probation.

Appellant challenges his conviction and judgment of sentence on two grounds: that he was improperly certified for trial as an adult; and, that the lower court improperly denied his lineup request and admitted defective identification testimony. The Superior Court, in an unpublished memorandum opinion, 368 Pa. Super. 643, 531 A.2d 35 (1987), found these contentions to be without merit. We affirm.

The events which led to Derrick Rush's trial and conviction in this matter occurred on a Sunday evening at the Belmont Plateau in Fairmount Park in Philadelphia. The park was hosting a free "Rap Music" concert, attended by several hundred youths. At approximately 7:30 p.m. violence erupted near the refreshment stand. Two gangs of youths, who had a previous altercation a few days earlier, began to fight. The fight escalated into the firing of shots by a youth later identified as Derrick Rush. Two teenagers were injured in the shooting. Joseph Gilliard, sixteen years of age, was shot in the ankle. A fourteen year old girl, Charlene Tyson, was shot in the abdomen, colon and spleen,

[ 522 Pa. Page 382]

    the bullet ultimately coming to rest in an inoperable position near her spine. Miss Tyson's injuries required a temporary colostomy bag and two serious operations.

Two eyewitnesses, Joseph Ellis and Michael Clark, in addition to Mr. Gilliard, identified the appellant as the shooter from a police photo book. The witnesses also identified another youth, Robert Ravenell, as an accomplice of appellant's. Derrick Rush was arrested at his grandmother's home, where he was found asleep on the sofa, with a small caliber gun hidden under the cushion.

At the preliminary hearing, the court found sufficient evidence existed to hold appellant over for trial. An amenability hearing was held to determine whether appellant, who was sixteen years, eleven months old, should be certified as an adult for trial.

I.

The legislature promulgated the Juvenile Act, 42 Pa.C.S. ยง 6301 et seq., as regards delinquent behavior of minors, for the purpose of treating, supervising, rehabilitating and caring for children in a manner apart from the adult criminal system. The Act provides that one who is fourteen years or older, who commits a delinquent act that would be a felony if committed by an adult, may be tried ...


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