The opinion of the court was delivered by: MARSH
Relator has filed in this court a petition for a writ of habeas corpus. It appeared from the petition that all state remedies had been exhausted. On the basis of the petition, a rule was issued to show cause why an evidentiary hearing should not be granted. At the hearing the District Attorney submitted documents required under Local Rule 16(g). Based on the records submitted, the court is of the opinion that the rule should be discharged and the petition for writ of habeas corpus denied.
Relator was charged in two indictments for armed robbery and receiving stolen goods. The indictments resulted from the occurrence of two armed robberies of gas stations, one in the early morning of May 13, 1963,
and the other on the night of May 20, 1963.
At trial relator was found guilty by a jury on all counts of both indictments and was sentenced to imprisonment for a total term of 6 to 15 years.
In his petition relator raises a number of contentions with respect to the manner in which the arrest was made and the manner in which certain evidence admitted at trial was obtained.
Relator contends that his constitutional rights were violated when the trial court admitted into evidence over two objections certain.38 caliber bullets which were seized during a search with a warrant of relator's home. Irrelevancy was the basis of the first objection, and lack of reasonable ground and failure to specify the items to be seized in the search warrant were the reasons for the second objection.
It seems that subsequent to trial the search warrant was lost. Thus, no opportunity exists to determine from inspection whether it was in fact defective. Whether the trial Judge, who probably saw the search warrant and admitted the bullets in evidence, thought it was valid does not explicitly appear. However, even if we assume that the warrant was defective
and that the search and seizure were unlawful, therefore causing the admission at the trial of the seized bullets to constitute constitutional error, nevertheless, it is not sufficient to entitle relator to relief if the error was harmless. Not all error that is committed during a trial is harmful. The test for determining whether error is harmless or not was formulated by the United States Supreme Court in Chapman v. State of California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). The Court held "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Using this test a court is justified in denying habeas corpus relief if it finds from the trial record as a whole that the error was harmless. Young v. Boles, 270 F. Supp. 847, 849 (N.D.W.Va.1967). A review of the entire trial record convinces this court that the alleged erroneous admission of the.38 caliber bullets was harmless beyond a reasonable doubt.
Relator was identified by the victim in court as one of the two perpetrators of the armed robbery which occurred on May 13, 1963. Relator was also identified at a lineup. The victim who formerly had been a police officer testified he had an opportunity to observe closely the facial features of the robber he identified (T., p. 9). He further testified that the robber had a.38 caliber revolver that was "sort of nickel-plated * * * [and] pretty well marred up * * *" (T., p. 10). He identified Commonwealth Exhibit 1 as appearing like the gun that was used. In addition to the money seized, the victim testified that his wallet containing four personal cards with his name on them was taken This wallet and cards were admitted in evidence (Commonwealth Ex. 2).
The operator of the gas station related that while outside of the building he was approached by two men. One of the men showed a gun, and the operator and the two men proceeded into the building. In the building both of the men pulled out guns and the operator opened the cash register. Bills and change were removed and the change was placed in a right-hand glove which belonged to the operator (T., pp. 66-67). Commonwealth Exhibits 1 and 3 were identified by the operator as resembling the guns used and the glove marked as Commonwealth Exhibit 4 was identified as the glove used to carry the change. The operator further testified that one of the robbers was wearing a "green pull over sweater".
The North Braddock police investigated the robbery and relayed the information concerning the blue station wagon to neighboring police departments. Based on this information, the Swissvale police within an hour after the robbery stopped a blue station wagon, in which relator was one of the occupants. The North Braddock police arrived and the relator and the vehicle
were taken immediately to the North Braddock police station. Lieutenant Wagner of the North Braddock police testified that relator was wearing a green V-neck sweater. Further testimony showed that the vehicle was searched at the police station and in a ventilator under the dashboard two.38 caliber revolvers, a glove full of change and two operator's licenses and other cards bearing the name of the victim of the first robbery were found. These items were admitted into evidence as Commonwealth exhibits.
In the light of the eyewitness identification of the relator, the recognition of the revolvers, the glove full of change, and the personal cards found in the station wagon, and the factor of the green sweater, we are convinced that beyond a reasonable doubt the alleged error committed in the admission of the.38 caliber bullets was harmless.
Relator further claims that there was no probable cause for his arrest and, therefore, his arrest without a warrant was unlawful. A lawful arrest without a warrant can be made if probable cause exists for making it. Probable cause is found to exist where police officers through reliable information have knowledge of facts and circumstances which are sufficient to cause a man of reasonable prudence to believe that a crime has been committed. McCray v. State of Illinois, 386 U.S. 300, 304, 87 ...