Appeal from order of Superior Court, Oct. T., 1972, No. 123, affirming judgment of sentence of Court of Common Pleas of Lebanon County, No. 303 of 1970, in case of Commonwealth of Pennsylvania v. John Richard Krall.
Joseph C. Mesics, Public Defender, for appellant.
David J. Brightbill, Assistant District Attorney, and George E. Christianson, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen concurs in the result.
John Richard Krall was convicted by a jury in Lebanon County of burglary and was sentenced to a term of two-to-five years. Following denial of post-trial motions in the trial court, appellant prosecuted a direct appeal to the Superior Court where the judgment of sentence was affirmed in a unanimous per curiam order. We granted review to consider appellant's contention that he had been illegally arrested.
In the early morning of April 1, 1970, the vehicle in which appellant Krall (the driver) and one Glenn Swanger (the passenger) were proceeding on a road leading from Myerstown, Pennsylvania, was stopped by a state
trooper. The trooper discovered that Krall possessed neither an operator's license nor registration for the car, and that the car appeared (from external inspection) to contain burglary tools on the floor. Both Krall and Swanger were immediately arrested for possession of burglary tools and were escorted to a nearby magistrate. The police obtained a search warrant and returned to the car, finding there many tools suitable for use in the commission of burglaries. While the two occupants of the vehicle were still present in the magistrate's office, word came from Myerstown that the Post Office there had been entered during the night. A button discovered in that building matched those on a coat worn by Swanger, one button of which happened to be missing. Neither Krall or Swanger was immediately charged with burglary. They were charged instead with possession of burglary tools and, since neither was able to post bail, were detained in the Lebanon County Jail.
On April 13, 1970 -- some two weeks later -- the Assistant Chief of the Myerstown Borough Police Department filed a criminal complaint against Krall before a justice of the peace for the burglary of the Post Office, and obtained from her a warrant for the arrest of Krall, who was still confined in the Lebanon County Jail.
On June 2, 1970, a preliminary hearing was held before the justice of the peace who had issued the warrant and appellant Krall was held for court. Thereafter, on July 29, 1970, appellant filed in the lower court a motion entitled "Application To Dismiss Charges" in which it was alleged that the complaint and the arrest warrant failed to provide the issuing authority with information from which she could have made a neutral and independent determination of probable cause for the defendant's arrest.*fn1 No hearing was
held, however, and this motion was ultimately denied by the court.*fn2 Thereafter, Krall was indicted for burglary, and on December 15, 1970 was convicted after a trial by jury. Post-trial motions were refused, including a motion in arrest of judgment on the ground that "defendant's constitutional ...