Appeals from order of Court of Common Pleas of Delaware County, Dec. T., 1967, Nos. 341 to 344, inclusive, in case of Commonwealth of Pennsylvania v. Charles Edward Whiting.
Vram Nedurian, Jr., Assistant District Attorney, with him William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.
R. Barclay Surrick, Assistant Public Defender, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Jacobs and Hoffman, JJ., dissent.
[ 216 Pa. Super. Page 93]
This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Delaware County, Criminal Division, granting a new trial to the appellee after a trial resulted in a verdict of guilty on all charges. The defendant, Charles Edward Whiting, was arrested on October 3, 1967, for robbery, larceny and receiving stolen goods, carrying concealed deadly
[ 216 Pa. Super. Page 94]
weapon and pointing deadly weapon. On October 4, 1967, a lineup was conducted at which lineup the victim identified the defendant. The defendant was not represented by counsel at the lineup. On January 15, 1968, a hearing was held before Judge Lippincott on a motion to suppress the identification and testimony regarding the lineup. After the hearing the court orally entered the following order: "We, therefore, rule that any testimony pertaining to identification at the said line-up is inadmissible as part of the Commonwealth's case; without prejudice to the Commonwealth's right, however, should the question be raised by the defendant at the trial."
On March 25, 1968, the case was called for trial and this same date transcribed notes of testimony and the order were filed by the court stenographer. Said notes of testimony were not at that time approved by the court and contained an erroneous quotation of the order and handed down by the court as follows: "We therefore rule that any testimony pertaining to identification at the lineup is inadmissible as part of the Commonwealth's case, without prejudice to the Commonwealth, the question should not be raised by the defendant at trial."
The defendant was represented by the same attorney at the suppression hearing on January 15, 1968, and at the trial on March 25, 1968. The attorney was present when the court handed down the order in the suppression hearing, but now alleges that he relied on the order as contained in the notes of testimony of the suppression hearing which had not been approved by the court. As a result of this reliance, counsel for the defendant alleges that no question was raised at the time of trial with regard to the lineup identification nor the inconsistencies contained in the evidence given at the suppression hearing. He treats this reliance on
[ 216 Pa. Super. Page 95]
his part as a denial to the defendant of his right to cross-examination during the trial. The court below accepted this contention by the defendant and it was on this basis a new trial was granted.
There is apparently no denial on the part of the defendant that the order as entered after the suppression hearing was made within the hearing of the defendant and his counsel. In fact, the order is contained in the unapproved notes of the suppression hearing on its face indicates an error on the part of the stenographer wherein the Commonwealth was ordered not to offer any testimony pertaining to the identification in the lineup and then goes on to say without prejudice to the Commonwealth. This order would be inconsistent with the latter ...