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WARNER v. HOWARD

February 6, 1976

MICHAEL J. WARNER
v.
JAMES F. HOWARD



The opinion of the court was delivered by: NEALON

 Petitioner was sentenced February 26, 1973, by the York County Court to a term of five to ten years after conviction for armed robbery, burglary, larceny, receiving stolen goods, wantonly pointing a deadly weapon, and assault and battery. He now seeks a Writ of Habeas Corpus alleging that his in-court identification should have been suppressed because it was based on an improper pretrial lineup; the trial judge misstated the evidence; and his trial counsel was incompetent.

 The factual background as set forth in the opinion of the Trial Court is, as follows:

 
"(On) September 20, 1971, at about 9:00 P.M., Robert Ream, his wife, Dorothy, and their daughter, Susan, were in their home, Mr. and Mrs. Ream were in the living room watching TV, and Susan was in the bedroom on the same floor. Two men entered the house: one wearing blue jeans, a rust colored shirt, a stocking over his face, gloves on his hands and sandals on his feet. The other wore dark colored pants, a light checked shirt, a woman's wig, and carried a sawed-off shotgun . . ."
 
"(They) told the Reams that the gun was loaded and pointed it at Mr. and Mrs. Ream, requiring them to lie down, he on the sofa, and she on the floor, while the other man ransacked the house. Susan was accosted by the one ransacking the house as she walked toward the living room from the bedroom whereupon she also was forced at gun point to lie on the floor in the living room. The Reams were tied, though apparently not too securely. After the house was ransacked the two men left with a considerable amount of the Reams' personal property."

 The Ream home was located on Hillside Terrace in a residential area of Manchester Township. Shortly before being informed of the Ream robbery, the Manchester Township police had noticed a 1965 Ford sedan parked on Bannister Avenue, some two hundred feet from the Ream residence. Bannister Street runs in an easterly-westerly direction and intersects Hillside Terrace. Because all the homes in this area have garages, the attention of the police was attracted to the Ford as it was the only vehicle parked on either street. The officers took the registration number of the vehicle which was registered in the name of codefendant Davy's wife. Upon being informed of the robbery, and after interviewing the Ream family, the officers proceeded to the Davy home where they found both defendants Davy and Warner. According to defendant Warner, they were taken into custody and placed ". . . in a lineup at City Hall two hours after the alleged robbery." *fn1" "A few minutes" *fn2" after being identified in the lineup by Mr. Ream as the man who wore a woman's wig and carried a shotgun, defendant Warner was taken before a Magistrate for a preliminary arraignment. Petitioner computes the total time that elapsed as ". . . I guess about, maybe four or five hours after the illegal arrest." *fn3"

 Prior to trial, defendant moved to suppress the lineup identification because it was impermissibly suggestive. After hearing, this motion was denied. The defendant also moved to suppress evidence seized pursuant to a search warrant issued by a magistrate upon application of a York police officer. After hearing, the court concluded ". . . that neither the affidavit which was filed [by the police officer] as an application for the search warrant nor the information which he orally submitted to the Magistrate considered separately or together set forth sufficient facts which would constitute probable cause for the issuance of the search warrant . . . and the evidence obtained as a result of the search . . . is hereby suppressed."

 At the trial Mr. Ream again identified defendant as one of the perpetrators of the crime. *fn4" There was no reference to the lineup identification in the Commonwealth's case in Chief. However, reference was made thereto by defense counsel who attempted during cross-examination to discredit Mr. Ream's in-court identification by suggesting that his lineup identification of defendant was hesitant and uncertain. Mr. Ream admitted that he hesitated before identifying defendant at the lineup. He testified, nevertheless, that the lineup aside, he could positively identify defendant in the courtroom as one of the men in his house that night. The defendant was convicted and his trial counsel filed post-trial motions alleging (1) that defendant was placed in a lineup subsequent to an illegal arrest and, therefore, any identification made in the lineup is "fruit of the poisonous tree" and inadmissible in evidence, (2) the lineup was impermissibly suggestive, and (3) defendant was without counsel at the lineup.

 The trial court dismissed the post-trial motions holding (a) that the in-court identification of defendant by Mr. Ream was positive and unwavering notwithstanding vigorous cross-examination; (b) that "though it be agreed that there was not a lawful arrest", this in no way tainted the identification by the victim; (c) the lineup identification was not impermissibly suggestive, citing United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); and (d) counsel was provided prior to the time of the lineup and was present during the time the lineup was viewed by the victims of the offense. Subsequently, the defendant was allowed to file an amended post-trial motion alleging that there was an unnecessary delay in bringing defendant before a Magistrate after his arrest. Similarly, the trial court denied the amended motion holding that there was no unnecessary delay and that the defendant demonstrated no prejudice. Defendant appealed to the Pennsylvania Superior Court which affirmed the judgment in a Per Curiam order. Defendant filed a petition for allowance of an appeal from the Pennsylvania Superior Court to the Pennsylvania Supreme Court which was denied.

 On May 8, 1974, defendant filed a Post Conviction Hearing Act petition in York County seeking relief on various grounds including:

 
(3) Counsel did not include all the allegations on the direct appeal and also pursue the pretrial motions on the direct appeal.
 
(4) Counsel refused to ask the Court to suppress the In-Court identification like I ask him (sic) and thus the ...

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