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COMMONWEALTH PENNSYLVANIA v. EDWARD MONTGOMERY (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD MONTGOMERY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, Imposed on Indictment Nos. 354-355, September Session 1972. No. 917 October Term, 1975.

COUNSEL

John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., dissent.

Author: Watkins

[ 246 Pa. Super. Page 374]

This is an appeal from the judgment of sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Edward Montgomery, after conviction in a non-jury trial of robbery and of carrying a firearm in a public place. He was sentenced to a term in prison of not less than one year and not more than ten years.

On August 7, 1972, one Anthony Marano, an employee of John's Vending Company, was servicing the Red Lion Bar in Philadelphia. As Marano was leaving the premises the appellant opened the door for him and Marano left the premises and walked to his truck which was parked nearby. Before he entered his truck Mr. Marano saw the reflection of the appellant and another person in the glass door of the truck. As Mr. Marano entered the truck he felt a sharp object pressed against his side and was told to get inside the truck by the persons he had observed behind him. Appellant and his accomplice also entered the truck after which appellant asked Marano for "the money". At this point Marano observed the appellant pointing a gun at him. Appellant then held the gun on Marano while his accomplice removed money that Marano had collected from vending machines and left the truck. A few minutes later appellant also left the truck after which Marano jumped from the truck and managed to flag down a passing patrol car and informed the police of the incident. During the incident the appellant remained in Mr. Marano's view for a period of 5 minutes during which time Marano was able to get a good look at appellant at close range. Marano then entered the patrol car and rode around the block with the officer searching for the appellant and his accomplice. The patrol car then returned to the scene of the robbery and the officer

[ 246 Pa. Super. Page 375]

    went inside the bar to notify headquarters of the incident. While the officer was inside the bar a person who Mr. Marano did not know informed him that the perpetrators of the crime were at a certain address which was located about a block from the scene. This information was given to Marano within 15 minutes of the robbery.

After informing the officer of what the unknown person told him, the officers and Marano proceeded to the address that had been supplied to them. When they arrived other police officers were already there. The officers knocked on the door and entered the premises. While some of the officers brought men downstairs from the second floor of the premises, Mr. Marano and other police went into the basement of the premises and found a substantial amount of change and a pink receipt slip with John's Vending Company printed thereon.

Mr. Marano was then taken to a police station where he identified the appellant and his accomplice. Mr. Marano also identified the appellant at trial as one of the men who robbed him. After the non-jury trial appellant was convicted of the charges and this direct appeal followed.

On appeal the appellant alleges that the entry and search of the premises was unlawful, that the out-of-court identification of him was illegal, that the in-court identification of him was so tainted by an unlawful out-of-court identification that it should not have been permitted and that his right to a speedy trial was violated mandating a dismissal of the charges against him.

Appellant argues that his arrest and the search of the premises were unlawful because they were not based upon probable cause. Generally, the Fourth Amendment to the United States Constitution requires that a search warrant be issued before any search of a premises can be lawfully conducted. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. ...


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