Appeal from order of Superior Court, Oct. T., 1966, Nos. 234 to 244, inclusive, affirming judgments of sentence of Court of Quarter Sessions of Philadelphia County, June T., 1964, Nos. 764 to 774, inclusive, in case of Commonwealth of Pennsylvania v. Oscar E. Pearson.
Jerold G. Klevit, for appellant.
James D. Crawford, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents.
This appeal presents to our Court for the first time a problem concerning the application of the new rule on constitutional harmless error announced by the Supreme Court of the United States in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967).
Appellant, Oscar E. Pearson, was charged with aggravated robbery on eleven bills of indictment. After a jury trial in the Court of Quarter Sessions of Philadelphia County, verdicts of guilty were returned on all eleven bills; the trial judge imposed consecutive five to ten year sentences on eight of the eleven indictments, suspending sentence on the other three. On appeal these convictions were affirmed per curiam by the Superior Court, with Judges Jacobs and Hoffman dissenting.
Between November 5, 1963 and March 30, 1964, a series of eleven armed robberies were committed in the Philadelphia area. Of the actual perpetration of these crimes there can be no doubt. Nor was there any doubt that eight of them were committed by two men, one of
whom was Gilbert Martell. At the time of appellant's trial, Martell had already pled guilty to, and been convicted of, these crimes. The crucial issue posed at trial was the identity of Martell's accomplice. Although the Commonwealth assembled an impressive array of eyewitnesses, all of whom testified that they were robbed by the appellant, Martell himself was unwilling to identify Pearson unequivocally until cross-examined,*fn1 and even then could be forced to admit only that he had previously identified appellant's photograph. In order to buttress its case, the Commonwealth, over timely objection by defense counsel, introduced two wallets, allegedly taken from an apartment occupied by one T. B. Dixon. It was later shown that Dixon was in fact an alias, that Pearson was renting the apartment, and that the wallets belonged to victims of the robberies.
An agent of the Federal Bureau of Investigation testified that the appellant was arrested at a racetrack in Laurel, Maryland, and that after his arrest, other agents went to Pearson's rooming house in Baltimore, searched his room without a warrant, and discovered the wallets. In Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966), a similar search was held invalid on the theory that to be made without a warrant the search must have been incident to arrest, and that the procedure of arresting a defendant at point X, then searching his room at point Y, did not qualify as incident to the arrest. In light of Ellsworth,
it is clear that the wallets should not have been admitted into evidence, a fact conceded by the Commonwealth on oral argument before this Court. Nevertheless it is now argued that the admission of the wallets did not prejudice appellant because of the substantial number of eyewitness identifications produced at trial, and that ...