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COMMONWEALTH v. JONES (11/11/71)

decided: November 11, 1971.

COMMONWEALTH
v.
JONES, APPELLANT



Appeal from decision of Court of Common Pleas of Delaware County, March T., 1968, Nos. 721, 725 and 729, in case of Commonwealth of Pennsylvania v. Clinton M. Jones.

COUNSEL

R. Barclay Surrick, Assistant Public Defender, for appellant.

O. Warren Higgins and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 220 Pa. Super. Page 215]

This is an appeal from the dismissal by the Court of Common Pleas of Delaware County, Criminal Division, of the Petition of Clifford M. Jones, the defendant-appellant, under the Post Conviction Hearing Act.

On January 17, 1968, just after midnight, the appellant entered Hughie's Tavern, 700 Baltimore Pike, Upper Darby, Pennsylvania, ordered a drink and gave the bartender a Ten Dollar ($10.00) bill. When change was being made, Hilton Stroud, a co-defendant, entered the tavern, went to the cash register pointing a gun at the bartender and said: "This is a stick-up, put the money in a brown paper bag." After getting the money, Stroud and the appellant backed out of the door together. Stroud fired two shots in the direction of the bartender.

While this holdup was taking place, a police officer observed a white Chevrolet parked at the tavern. He had noticed the car making four (4) loops around the tavern and also noticed that an apparent signal was being made by the headlights. He then saw two men

[ 220 Pa. Super. Page 216]

    come from the tavern and enter the car which immediately drove off. Immediately thereafter, a man came out of the tavern shouting: "Holdup." The officer pursued the car, but lost it. The description of the car and its occupants was transmitted to the Philadelphia Police Department. The Philadelphia Police observed a car answering the description and gave chase at about 1:00 a.m. It was abandoned and three men were apprehended. The appellant had a .22 calibre revolver in his possession.

All three men were tried together and all three were represented by counsel. The defendants were convicted of burglary, operating a motor vehicle without the consent of the owner; robbery, larceny and conspiracy. Post-trial motions in arrest of judgment and for a new trial were filed and argued on behalf of all three defendants. The court below filed an opinion dismissing the motions.

The appellant was sentenced on the robbery counts to pay a fine of One Thousand ($1,000.00) Dollars, costs of prosecution and imprisonment of not less than seven and one-half (7 1/2) years nor more than fifteen (15) years. He was also sentenced on the larceny conviction, but it was to run concurrently with the robbery sentence. Sentence was suspended on the other convictions. Stroud filed an appeal to this Court which affirmed the court below, per curiam, in Commonwealth v. Stroud, 215 Pa. Superior Ct. 188, 257 A.2d 52 (1969). The appellant did not file an appeal. On April 20, 1970, the appellant filed a Petition under the Post Conviction Hearing Act which was dismissed after hearing by the court below. This appeal followed.

The appellant complains that the confrontation at the Philadelphia police station was illegal. He cited for support of his position United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); ...


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