No. 160 October Term, 1976 Appeal from the Judgment of Sentence imposed September 25, 1975, of the Court of Common Pleas of Montgomery County, Criminal, at No. 4059 October Term, 1974, C.A. Nos. 4059, 4059. 1 of 1974.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Bert M. Goodman, Eric J. Cox, Assistant District Attorneys, and William T. Nicholas, District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Hoffman, J., joins.
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On September 19, 1974, Helen Rushton was employed as a waitress at the Donut Haven in Willow Grove, Pennsylvania. A man, later identified as appellant, entered and ordered a pastry. When Ms. Rushton turned from ringing the sale on the cash register, she saw that the customer had produced a gun which he was aiming at her. Ms. Rushton acquiesced to his demand for the money from the register (sixty dollars). After the robber had departed, Ms. Rushton crossed the street to a gasoline station where she reported the incident to Officer Roger Kliesh of the Upper Moreland Police Department.
Ms. Rushton identified appellant from photographs displayed to her at the police station, and appellant was arrested and charged with robbery and theft of movable property. Latent fingerprints taken from the sugar dispenser at the Donut Haven, along with inked samples of appellant's prints, were sent to the fingerprint division of the Federal Bureau of Investigation. David Layton, a fingerprint specialist
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with the FBI, determined that the two sets of prints belonged to the same individual.
On March 3, 1975, appellant was found guilty of the above charges by a jury. For the reasons discussed below, we must reverse the judgment of sentence of the lower court and remand for a new trial.
Appellant first contends that the indictment must be quashed because he was denied the effective assistance of counsel at his preliminary hearing. It is, of course, well settled that a defendant is entitled to the effective assistance of counsel at a preliminary hearing. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Redshaw, 226 Pa. Super. 534, 323 A.2d 92 (1974). The Commonwealth contends that appellant knowingly and intelligently waived his right to counsel at the preliminary hearing. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972).
We need not decide whether appellant knowingly and intelligently waived his right to counsel. He is not entitled to have the indictment quashed. The remedy for denial of counsel at the preliminary hearing depends on the specific prejudice caused thereby. See, e. g., Commonwealth v. Redshaw, supra. If appellant suffers no prejudice, he is entitled to no remedy. Commonwealth v. Gwyn, 449 Pa. 131, 295 A.2d 73 (1972). Appellant's brief argues that, "[s]ince the eyewitness to the robbery identified appellant at the preliminary hearing, it cannot be said that the lack of counsel was 'harmless error.'" However, error is not presumed from the fact of an identification in the absence of counsel. Instead, as always, it must be determined whether the in-court identification proceeded from a basis independent of the allegedly illegal confrontation. Commonwealth v. Sawyer, 238 Pa. ...