Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1969, Nos. 41 and 157, in case of Commonwealth of Pennsylvania v. Bernard Temple.
John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.
Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Dissenting Opinion by Hoffman, J.
[ 232 Pa. Super. Page 454]
The appellant, Bernard Temple, files this direct appeal, nunc pro tunc, from his convictions after trial before a jury, on charges of armed robbery and fraudulent use of a credit card. Temple contends:
(1) The search and seizure of the credit card was made pursuant to an invalid warrant issued without probable cause,*fn1 and;
(2) The in-court identification of the appellant was improperly tainted by an uncounselled "illegal" lineup.
We must first consider the claim of invalidity as to the search warrant. The record shows that a gasoline credit card was taken forcibly (along with other items and money in a purse) from a victim in Pittsburgh in May 1968. The gasoline credit card was thereafter fraudulently used for purchases by the driver of a blue Cadillac.
[ 232 Pa. Super. Page 455]
On December 19, 1968, police noticed a blue-grey Cadillac with two white males and one black male cruising in another section of the city. Its license number was noted. Less than a half hour later, two white and one black assailants robbed a victim at her home in the same vicinity. The police, figuring the men in the Cadillac they had seen cruising shortly before the crime might have been involved, located the car shortly thereafter parked by a bar in a nearby section of the city.
Upon closer examination, they found that the Cadillac bore two different sets of license plates, one covering the other. Upon a check they found the Cadillac to be registered to the appellant. The police entered the bar to ask questions, but all the patrons, including appellant, denied knowledge of the ownership of the car. Upon further questioning, appellant gave the police a fictitious name. He and his Cadillac were taken to the police station, where a warrant was secured for a search of the car -- ostensibly to discover possible fruits of the day's robbery. Instead, the credit card from the May robbery was discovered on the sun visor of the car.
In the application for the search warrant, the police officer involved gave the magistrate written information, in proper form and ...