Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, at No. 116 April Term, 1975.
Thomas W. Houser, Bethlehem, for appellant.
Robert A. Freedberg, Assistant District Attorney, Easton, and John E. Gallagher, District Attorney, Easton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.
[ 247 Pa. Super. Page 388]
This is an appeal from the denial of post-trial motions by the lower court en banc following a jury trial in which
[ 247 Pa. Super. Page 389]
appellant was convicted of robbery.*fn1 Since we believe the lower court properly dismissed the three arguments now raised on appeal, we affirm.
On December 5, 1974, at approximately 1:00 a. m., three black male individuals entered through a side door of Bill's Campus Arms Restaurant in Easton, Pennsylvania. One of the men was carrying a rifle. Two of the men wore nylon stockings over their faces, while the third wore a ski mask. The proprietor of the restaurant, William Shackleford, testified that he was ordered at gunpoint to turn over some six hundred dollars, after which the three men left the scene. The police arrived on the scene shortly thereafter. After obtaining a description of the men, the police began cruising the area near the restaurant. Officer Homaki testified that minutes after leaving the scene of the robbery, the police discovered an automobile parked behind a building not far from the restaurant. They heard voices and what sounded like people running behind an embankment to the rear of the vehicle. Upon approaching the vehicle, the officers discovered two stockings and a ski mask on the ground. Although the officers gave chase, they were unable to catch a glimpse of the person they had heard behind the embankment. They did, however, make plaster casts of a "sneaker" print in the mud near the car. When the vehicle involved was searched, appellant's wallet was found inside.
Appellant was arrested and charged with robbery on December 11, 1974, and thereafter committed to the Northampton County Prison. Pursuant to a search warrant, a pair of black converse sneakers worn by appellant were seized while he was incarcerated. A motion to suppress those sneakers was denied on June 9, 1975. Appellant was found guilty in a jury trial in September, 1975. Post-trial motions were denied, and this appeal followed.
The first argument raised by appellant is that there was no probable cause to support the issuance of the search warrant pursuant to which the sneakers were seized, and
[ 247 Pa. Super. Page 390]
that consequently the lower court erred in failing to suppress the sneakers. We disagree. The affidavit for the warrant set forth the circumstances of the robbery as previously discussed herein, including the discovery of the stockings and wallet, and the fact that appellant, when committed to the county prison, was wearing sneakers having the same pattern on the sole and approximately the same size as the prints found near the automobile and the abandoned stockings. The affidavit went on to state that a witness who had seen three negro males standing ...