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COMMONWEALTH v. SMITH (05/04/73)

decided: May 4, 1973.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, Nos. 1556 and 1559, in case of Commonwealth of Pennsylvania v. William Smith.

COUNSEL

Martin A. Heckscher, with him Duane, Morris & Heckscher, for appellant.

James D. Crawford, Deputy District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones and Mr. Justice Eagen concur in the result. Mr. Justice Manderino dissents. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this dissenting opinion.

Author: O'brien

[ 452 Pa. Page 3]

On March 21, 1968, at 1:45 p.m., a check-cashing agency in Philadelphia was robbed by two men, and

[ 452 Pa. Page 4]

    the proprietor, Charles Ticktin, was killed. An estimated $1500 was stolen in the robbery. The victim's wife, Edith Ticktin, seeing the two holdup men enter the premises, immediately ran out the back door, screaming for help. The proprietor of the establishment next door immediately went to call the police. Mrs. Ticktin then heard two shots and returned to find her husband lying wounded on the floor. He died several days later.

At least four people were in the vicinity at the time of the killing. From these witnesses, police, who soon arrived on the scene, learned that two men, one wearing a light-colored raincoat, dark glasses and a hat, and the other wearing a dark jacket, were seen jumping out of a car, driven by a woman, and entering the store before the shooting and were again seen running back from the store and entering the same car, a black Oldsmobile with a license plate ending with the digits 965, after the killing. Several police officers, having received descriptions of the car, its license plate and the occupants, participated in the apprehension of the holdup participants. A car matching the description of the Oldsmobile involved was encountered within minutes of the robbery by police patrolling in the area. After a high-speed chase, which took nearly ten minutes, these police forced the black Oldsmobile to a halt. The two male occupants of the car jumped out and ignored an order to stop. One of them, the appellant, William Smith, was shot as he attempted to flee and was arrested immediately. The other male, William Barksdale, see Commonwealth v. Barksdale, 442 Pa. 456, 275 A.2d 291 (1971), and the driver, Loretta Johnson, were both arrested moments later.

Two other officers, recognizing the automobile as the one which was the subject of police radio broadcasts, came upon the scene soon after the appellant and his compatriots had been captured. One officer removed

[ 452 Pa. Page 5]

    a three-quarter-length tan jacket, containing $1,758 in cash, from the rear seat of the automobile. Another officer removed a disassembled shotgun and two spent twelve-gauge shells from the automobile. The automobile was driven to the police station where, approximately two hours later, it was photographed and a number of items, including a light-colored raincoat and a black leather car coat, were removed from the seats, floor and trunk.

Appellant, William Smith, after being tried separately from his co-defendants, before a judge and jury, was found guilty of murder in the first degree and aggravated robbery. After denial of his post-trial motions, he was sentenced to life imprisonment for the murder, with a concurrent ten to twenty years sentence for the robbery. He now brings this appeal.

Appellant raises several contentions in his appeal for a new trial. He first argues that the eyewitness identification by the decedent's widow, Mrs. Edith Ticktin, should not have been admitted because it was based, not upon her "fleeting, frightened glance of the robber's face," but upon a photographic lineup where Mrs. Ticktin was shown nine to ten photographs, including a picture of appellant, after appellant had already been taken into custody, and without the presence of counsel for appellant. Appellant argues that this procedure violated our ruling in Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), and, therefore, that the court erred in failing to grant his motion to suppress Mrs. Ticktin's testimony. However, we do not believe that our decision in Whiting should be applied retroactively. Since the photographic identifications challenged here occurred in March of 1968, and our decision in Whiting was not made until July 2, 1970, appellant will not be permitted to take advantage of our Whiting decision.

[ 452 Pa. Page 6]

The considerations which impelled the United States Supreme Court in Stovall v. Denno, 388 U.S. 293 (1967), to deny retroactive effect to the rulings in United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951 (1967), are equally cogent here. Prior to the Third Circuit's first opinion in United States v. Zeiler, 427 F. 2d 1305, 1307 (3d Cir. 1970), and our own opinion in Whiting, supra, the weight of authority was to the effect that an accused was not entitled to counsel while his photographs were being shown to witnesses to a crime. Law enforcement authorities fairly relied on this rule and retroactive application of our decision in Whiting "would seriously disrupt the administration of our criminal laws." Stovall, supra.*fn1 See also United States v. Higgins, 458 F. 2d 461 (3d Cir. 1972).

Appellant next argues that the evidence seized by the police from the automobile at or near 5238 Spruce Street, when Smith and his confederates were apprehended, and the evidence taken from the same car sometime after it had been driven to the police station at 55th and Pine Streets should not have been admissible at trial, since no search warrant was procured for either search. However, we believe that no warrant was required to legitimate either search under the holding of the United States Supreme ...


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