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filed: October 14, 1983.


No. 2451 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 818-819 February Term, 1978


Victor J. DiNubile, Jr., Philadelphia, for appellant.

Alan J. Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Cirillo and Hoffman, JJ.

Author: Brosky

[ 320 Pa. Super. Page 233]

In June, 1978 appellant June O'Bryant was found guilty by a jury of charges of robbery and conspiracy. He was sentenced to a term of imprisonment of eight to sixteen years, to be followed by a probationary term of five years. This appeal followed.

The incident which led to his arrest occurred on December 17, 1977 when a restaurant known as Ellis' Luncheonette

[ 320 Pa. Super. Page 234]

    was robbed at gunpoint by two men, one of whom wore a ski mask and was subsequently identified as appellant Mr. O'Bryant.

On appeal Mr. O'Bryant argues that the lower court erred in denying a request made by him to be tried without a jury. This argument was raised also by Mr. O'Bryant's co-defendant, William Sorrell, as well as by other appellants. Our Supreme Court considered their claims that 42 Pa.C.S.A. 5104(c) pursuant to which each of them had been denied the right to waive jury trial, is unconstitutional. The Court held that the statute is unconstitutional since it conflicts with Pa.R.Crim.Proc. 1101.*fn1 The case was remanded to us for disposition consistent with the Supreme Court's opinion. In view of that opinion, we reverse and remand the case for new trial.

In addition to the jury trial question, we will address claims made by Mr. O'Bryant that the suppression court erred in finding admissible: 1) a confession made by him; 2) a gun seized from his mother's residence, and 3) a photographic identification of him made by a witness to the robbery which led to his conviction.

Prior to trial, Mr. O'Bryant and his co-defendant Mr. Sorrell*fn2 moved pursuant to Pa.R.Crim.Proc. 1101 to be tried without a jury. That request was denied by the lower court because it believed that 42 Pa.C.S. 5104(c) gave to the Commonwealth a right to jury trial equal to that of a defendant. The Commonwealth demanded a jury trial.

In Commonwealth v. Sorrell, supra our Supreme Court did find 42 Pa.C.S. § 5104(c) unconstitutional. Based on that opinion we recently remanded for new trial in Commonwealth v. Giaccio, 311 Pa. Super. 259, 457 A.2d 875 (1983). As in Giaccio we remand this case for new trial with instructions to the lower court that if the appellant on retrial again states his intention to waive jury trial, the

[ 320 Pa. Super. Page 235]

    court should proceed under Rule 1101 to decide whether to approve the waiver.

We turn now to appellant's suppression arguments.

We note at the outset that on appeal from the denial of a suppression motion we will consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Baker, 299 Pa. Super. 241, 445 A.2d 544 (1982).

Appellant argues that evidence of photo identifications of him should have been suppressed.

At trial the two eyewitnesses to the Ellis' Luncheonette testified and identified appellant as one of the perpetrators of the crime. Both witnesses, Selina Bailey and Howard Bartlett, had been shown photo arrays prior to trial.

On cross-examination by appellant's counsel, Ms. Bailey was asked whether she had been shown such an array and if so, with what result. We agree with the Commonwealth's contention that since appellant introduced the photo identification by Ms. Bailey, he cannot claim error in its introduction.

Furthermore, we note that at the start of the suppression hearing appellant's counsel did not move to suppress the identification by Ms. Bailey, but questioned only Mr. Bartlett's identification.*fn3

Having determined that a complaint as to Ms. Bailey's pre-trial identification is not properly before us, we turn to the question of whether evidence of Mr. Bartlett's pre-trial identification should have been suppressed.

Mr. Bartlett, who was employed at Ellis' Luncheonette at the time of the robbery, was shown a photo array at his home on January 4, 1978. The array consisted of nine frontal photographs of black males. Mr. Bartlett identified the photo of June O'Bryant. The officer who showed Mr. Bartlett the photos testified that he did not tell the witness that he believed that a photo of one of the perpetrators was

[ 320 Pa. Super. Page 236]

    in the group and that any identifying information attached to the pictures was hidden.

Indeed, appellant does not now allege that the array was suggestive. Instead, he argues that evidence of the identification should have been suppressed because the witness Mr. Bartlett did not appear at the suppression hearing. In support of his claim he cites Commonwealth v. Lee, 262 Pa. Super. 280, 286, 396 A.2d 755, 757 (1978) in which we said, "at a hearing on a motion to suppress an 'on the scene' identification it is essential that the identifying witness testify."

Lee, decided after the date of appellant's suppression hearing, has been recently overruled insofar as it established a per se rule requiring the presence of identifying witnesses at suppression hearings.

In Commonwealth v. Thompkins, 311 Pa. Super. 357, 457 A.2d 925 (1983) we abandoned the Lee rule and held that,

The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive.

Id., 311 Pa. Superior Ct. at 362-63, 457 A.2d at 928 (footnote deleted) (emphasis in original).

As we explained in Thompkins citing Manson v. Brathwaite, 432 U.S. 98, 113, 114, 97 S.Ct. 2243, 2252, 2253, 53 L.Ed.2d 140, 154 (1977), the following factors are to be taken into consideration in assessing the reliability of identification evidence:

[ 320 Pa. Super. Page 237]

Similarly in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the court considered the issue of whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive.

The case presented to us, on the other hand, is one in which suggestiveness is not even alleged. No improper police conduct is to be deterred. Under these circumstances we do not find the identification inadmissible.

Appellant also argues that a gun seized from his mother's home should have been suppressed because the search warrant in the possession of the searching officers was based in part on stale evidence. His specific complaint is that the allegation in the warrant as to his residence was stale because it dated back to October, 1977. The warrant was issued on January 5, 1978.

It is true that stale evidence cannot supply the probable cause necessary to issuance of a search warrant. See Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975).

In Commonwealth v. Ryan, 300 Pa. Super. 156, 170, 446 A.2d 277, 284 (1982) we wrote, "Courts are reluctant to set a hard and fast rule as to what constitutes staleness of information for a search; such a determination must be made on a case by case basis."

At the suppression hearing the officer who secured the search warrant testified that the address named as appellant's residence was one he had given the police when he was arrested in October, 1977. Additionally, the officer stated that appellant had been arrested at the residence on previous occasions. The residence was that of appellant's mother and other family members. Under these circumstances, we will not find the information, which was at most three months old, stale.

We note that appellant also argues that the gun should be suppressed because in a separate homicide case in which appellant was the defendant, the lower court suppressed it

[ 320 Pa. Super. Page 239]

    as having been seized pursuant to an invalid search warrant.

The trial court opinion makes mention of the suppression by another judge of the same court, but explains that the judge who presided in the instant case did not feel bound by the earlier ruling.

In support of that conclusion, the lower court cites Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977). In that case our Supreme Court refused to extend collateral estoppel to instances in which a defendant wished to take advantage of a ruling in a case in which he was not a party.

The court in Brown relied upon 18 Pa.C.S.A. § 306(g) which specifically permits the conviction of an accomplice even though the person who was supposed to have committed the offense has been acquitted. In explaining its decision the court affirmed that in criminal cases, collateral estoppel is available only if mutuality is present. That is, the issue of fact must have been determined in a suit between the same parties.

See also Commonwealth v. Hamlin, 302 Pa. Super. 86, 87-88 n. 1, 448 A.2d 538, 539 n. 1 (1982).

In the instant case, however, appellant seeks the benefit of a prior ruling in which he was the defendant. Brown and Hamlin do not prohibit invocation of collateral estoppel in such an instance and in fact suggest that because mutuality would be present under the facts as averred, collateral estoppel does apply.

The record before us, however, does not contain information about the earlier order. We leave to the lower court on remand the task of determining whether in fact a prior adjudication had been made that found the search warrant defective. If so, collateral estoppel can be invoked by appellant.

We come finally to appellant's contention that a confession made by him following his arrest should have been suppressed because it was obtained in violation of the Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) six hour rule.

[ 320 Pa. Super. Page 240]

Appellant contends that the Commonwealth failed to meet its burden of proof as to its compliance with the Davenport rule. The Commonwealth must show by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Baker, supra.

The Commonwealth produced the testimony of the arresting officer who said that appellant was arrested on January 10, 1978 at 3:00 p.m. He was warned of his Miranda rights and questioned at 3:55 and again at 4:15. The officer testified that appellant was taken to the Police Administration building where he arrived at 8:25 and where arraignment began at 8:52.

We find the Commonwealth to have met its burden.*fn4

Judgment of sentence reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

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