Appeal from the Judgment of Sentence imposed November 12, 1975, by the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 1193, 1196 December Term, 1974. No. 515 October Term, 1976.
Joel Harvey Slomsky, Philadelphia, (Court Appointed), for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 242 Pa. Super. Page 498]
This is an appeal from the judgments of sentence imposed on the appellant, Frank J. Crutchley, following his conviction of the crimes of robbery*fn1 and criminal conspiracy.*fn2 The sole argument raised on appeal is that the identification testimony presented by the Commonwealth was improperly introduced into evidence at trial. We find no merit to appellant's contention, and therefore, affirm.
The events giving rise to this appeal are as follows: On August 19, 1974, about 2:00 A.M., two men held up Charles Mastronardo, the owner of the "Seven-Eleven" food store at 1801 Glendale Avenue in Philadelphia, and escaped with approximately $400, some groceries, and Mr. Mastronardo's wallet which contained credit cards. Mr. Mastronardo had an opportunity to observe the robbers during this incident in his store, and gave a detailed description of both men to the police.
On August 27, 1974, Officer Daniel Judge obtained a warrant to search for narcotics in an apartment leased by appellant. This search warrant, however, was issued without probable cause.*fn3 While appellant was not present at the time the officers entered his apartment, two other individuals were arrested there and taken to the police station, and several items, including some credit cards in the name of Charles Mastronardo, were uncovered. These credit cards were given to Detective James McKee, who,
[ 242 Pa. Super. Page 499]
having been involved in the investigation of the August 19, 1974 "Seven-Eleven" robbery, recognized the name on them as that of the victim. Detective McKee then realized that one of the men arrested as the result of the narcotics search matched the description given by Mr. Mastronardo of one of the robbers. Having previously known appellant, Detective McKee also concluded that the description of the other man fit appellant. Mr. Mastronardo was called to the police station where he identified co-defendant Howard Smith and appellant from a photographic array*fn4 as the men who had robbed him.
Appellant was arrested as a suspect in an unrelated crime, and while he was in custody, it was discovered that appellant was wanted in connection with the "Seven-Eleven" robbery. The trial judge suppressed the use of the credit cards for trial purposes, but declined to exclude the identification of appellant by Mr. Mastronardo. This appeal followed the lower court's denial of appellant's post-trial motions and its imposition of sentence.
Appellant contends that the identification evidence stemmed directly and immediately from the illegal search and was impermissibly tainted by it. In Wong-Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), the United States Supreme Court set forth the following test, applicable to the states, for determining whether evidence obtained after an illegal search is to be excluded:
"We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has ...