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COMMONWEALTH PENNSYLVANIA v. BARRY D. COOKE (11/17/78)

decided: November 17, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BARRY D. COOKE, APPELLANT



No. 229 April Term, 1978, Appeal from the Order of Sentence of the Court of Common Pleas, Mercer County, Penna. Criminal Division, at No. 21 March Term, 1976, dated September 20, 1977.

COUNSEL

Ross E. Cardas, Assistant Public Defender, Mercer, for appellant.

David B. Douds, Assistant District Attorney, Hermitage, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, J., concurs in the result. Spaeth, J., files a concurring opinion. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 260 Pa. Super. Page 530]

This is an appeal from a Judgment of Sentence imposed by the Court of Common Pleas of Mercer County following a denial of the Appellants post-trial motions.

Appellant was convicted of Robbery, Theft by Unlawful Taking and Criminal Conspiracy. On this appeal two issues are raised:

(1) That the trial court erred in permitting testimony by a police officer outside Mercer County, linking clothing to the appellant.

(2) That the trial court erred in denying appellant motions to suppress evidence because there was no probable cause to arrest appellant, there was no probable cause to search the automobile and there was no right to search the automobile without a warrant.

The facts are as follows:

The F. M. Service Station in Hermitage Township, Mercer County, Pennsylvania, was robbed on November 10, 1975. The attendant on duty that evening, John Hollobaugh, gave the Hermitage police officers a description of the two black men who robbed him, the clothes they had on and the color and model of the car in which they arrived and departed in. The Hermitage police issued an "all points bulletin" via a computer on the same day, giving the descriptions obtained from Hollobaugh. On November 24, 1975 the Butler City Police Department notified the Hermitage Police Department that two men matching the description and driving the same color and model automobile as set forth in the "all

[ 260 Pa. Super. Page 531]

    points bulletin" of November 10, 1975 had been arrested and were being held in Butler County Jail for a robbery of a tavern in Butler on November 14, 1975. The Hermitage Township police immediately obtained photos of the appellant and his partner and subsequently in a photographic "show-up", Mr. Hollobaugh identified the pictures of the men being held in Butler Jail as the persons who had robbed the service station. On December 1, 1975 a Criminal Complaint issued charging appellant and his accomplice with robbery and conspiracy.

Appellant was subsequently indicted and prior to trial filed a suppression motion asserting that he was questioned without counsel being present, that he had been arrested pursuant to the issuance of a detainer not obtained with probable cause and as a result various photos were used at a "show-up" and he was not afforded the right of confrontation. This motion was denied and the case proceeded to a jury trial on April 21, 1976.

At trial appellant moved to suppress various items of clothing confiscated when the Butler Police arrested him. After a mid-trial hearing, the court denied this motion.

On April 22, 1976 the jury found appellant guilty of Robbery, Theft and Conspiracy. Appellant thereafter filed post verdict motions which were denied by ...


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