Opinion
September 10, 1973.
December 11, 1973.
Criminal Law — Evidence — Identification — Lineup — Absence of counsel — Lineup predating decision in United States v. Wade — Suggestiveness of lineup — Evidence of record.
1. Defendant contended that the in-court identification made during his robbery trial was the result of a prior illegal identification of him from a lineup at which he was denied the assistance of counsel. Defendant's lineup and trial both preceded June 12, 1967.
It was Held that the lineup in question was not subject to the guarantee of United States v. Wade, 388 U.S. 218, which does not have retroactive applicability.
2. It was Held that the record failed to disclose any evidence to support defendant's contention that because of his manner of dress he stood out from the other man in the lineup and, therefore, the lineup was overly suggestive, thus denying his constitutional right to due process of law.
Criminal Law — Practice — Post Conviction Hearing Act — Waiver of issue — Failure to prove existence of extraordinary circumstances to justify failure to raise issue previously.
3. A defendant who fails to prove the existence of extraordinary circumstances to justify his failure to raise an issue in prior post-conviction proceedings or in previous appeals, as required by the Post Conviction Hearing Act of January 25, 1966, P.L. (1965) 1580, is deemed to have waived this issue.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.
Appeals, Nos. 871 and 1558, Oct. T., 1973, from orders of Court of Common Pleas of Luzerne County, Nos. 1817 and 1818A of 1965, in case of Commonwealth of Pennsylvania v. Donald Lee Bender. Orders affirmed.
Petitions for post-conviction relief.
Orders entered dismissing petitions, opinions by BROMINSKI, J., and OLSZEWSKI, J. Defendant appealed.
Michael J. Cefalo and Correale F. Stevens, Assistant Public Defenders, for appellant.
Chester B. Muroski, Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, for Commonwealth, appellee.
Submitted September 10, 1973.
Appellant Donald Lee Bender appeals from the denial of post-conviction relief following his 1966 convictions for robbery and rape. At appellant's request, the cases were severed, and separate jury trials were held, both of which resulted in convictions.
There were also convictions for prison breach and larceny of a motor vehicle, but they are not the subjects of this appeal.
Appellant contends that the in-court identification made during the robbery trial was the result of a prior illegal identification of him from a lineup at which he was denied the assistance of counsel. He asserts that this lineup proceeding was therefore violative of his Sixth Amendment right to counsel, as enunciated in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). We find, as did the court below, that the lineup in question was not subject to the Wade guarantee, because the decision in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967), restricted the application of Wade to identifications made after June 12, 1967. Appellant's lineup and trial both preceded that date.
Appellant further contends, apart from the right to counsel issue, that the lineup was overly suggestive, thus denying his constitutional right to due process of law. Our review of the record fails to disclose any evidence to support appellant's contention that because of his manner of dress he stood out from the other men in the lineup.
Appellant attacks his rape conviction claiming that the judge's charge to the jury was so prejudicial that he was denied due process of law. This issue was raised for the first time in this present appeal. It was never raised in prior post-conviction proceedings, nor on previous appeals to this Court. Since appellant has failed to "prove the existence of extraordinary circumstances to justify his failure to raise the issue" as required by the Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, Sec. 4, 19 P. S. § 1180-4 (b) (2), he is deemed to have waived this issue.
The orders below are affirmed.