Appeal from judgment of Court of Common Pleas of Montgomery County, Sept. T., 1964, No. 84, in case of Commonwealth of Pennsylvania v. Charles L. Reeves.
Daniel C. Barrish, Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, Executive Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Wright, P. J. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissenting opinion.
[ 218 Pa. Super. Page 90]
Charles L. Reeves was indicted by the Grand Jury in Montgomery County on charges, inter alia, of burglary and robbery. After a jury trial before Judge Toothman, specially presiding, Reeves was convicted and sentence was imposed. This appeal followed. The factual situation appears in the following excerpt from the opinion below:
"The facts in this case unfold a rather bizarre circumstance. On July 3, 1964, the defendant, identified by both the maid and her employer, Mrs. Irene Gassel, a housewife, residing at 255 Baldwin Lane, Wynnewood, came to the door and asked for a glass of water, stating that he was Mrs. Gassel's old gardener. The maid gave him the water, he then left and returned with two other men in about fifteen minutes, and slipped inside the house undetected. Charles Reeves, the maid testified, came upon her in the back in the laundry room, put something in her back, and took her up to the master bedroom, and another pulled a gun on Mrs. Gassel. The two women and also Mrs. Gassel's daughter, age six, were then tied and gagged and the three men went about stripping the house of its valuables, particularly jewelry, in the amount of approximately Ten Thousand ($10,000.00) Dollars. The defendant took the stand, denied any knowledge or participation in the crime, and claimed that his 'involvement in this crime is through malice'. The defense also called a police officer who testified that at the police-station, while investigating the crime, he had shown
[ 218 Pa. Super. Page 91]
Mrs. Deloatch [the maid] and Mrs. Gassel a picture of the defendant which they recognized as being one of the three men who came into the house that day".
Five contentions are advanced in appellant's brief, the first of which is thus stated: "1. Was appellant unlawfully brought to trial by an information which was determined erroneous, and was his arrest for the crime unlawful and violative of the fundamental notions of due process". The record discloses that the arrest procedure was in accordance with statutory authority. The magistrate had jurisdiction in any event: Commonwealth ex rel. DiDio v. Baldi, 176 Pa. Superior Ct. 119, 106 A.2d 910. Moreover, appellant's complaint may not be raised after indictment: Commonwealth ex rel. Gaurich v. Keenan, 181 Pa. Superior Ct. 619, 124 A.2d 144.
Appellant's second contention is thus stated: "2. Was the in-court room identification of appellant prejudicial and based on a prior overly suggestive photograph viewing of the appellant based on an alleged implication". Although an accidental confrontation in the court house corridor may have occurred in the absence of counsel, Mrs. Gassel and her maid each made a positive in-court identification. No evidence was introduced by the Commonwealth regarding the prior photograph identification, and no objection was made. Cf. Commonwealth v. Payton, 431 Pa. 105, 244 A.2d 644. The trial judge correctly determined that the in-court identification had an independent origin.
Appellant's third contention is thus stated: "3. Was appellant twice placed in jeopardy by the declaration of a new trial and tried again, when the mistrial was the product of the Commonwealth's failure to avail appellant alternate jurors and a voir dire". Appellant was first tried October 17, ...