Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Nos. 6455 and 6488 of 1965, in case of Commonwealth of Pennsylvania v. Kenneth W. Owens, Jr.
John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.
Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J., in Support of Per Curiam Affirmance: Dissenting Opinion by Hoffman, J. Price and Spaeth, JJ., join in this dissenting opinion.
[ 234 Pa. Super. Page 63]
[ 234 Pa. Super. Page 64]
Opinion by Cercone, J., in Support of Per Curiam Affirmance:
I join in the court's affirmance of the instant case on the basis of the opinion of the court below.
I do not regard Stovall v. Denno, 388 U.S. 293 (1967) as demarking a change in the law, and, therefore, I regard discussions of its impact in terms of retroactivity to be misleading at best.*fn1 As the Supreme Court stated in Stovall, and the lower court quoted in its opinion:
"[I]n any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that [the accused] was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and ...