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COMMONWEALTH v. WALKER (01/03/68)

decided: January 3, 1968.

COMMONWEALTH
v.
WALKER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, Nos. 461, 462 and 463, affirming judgment of Court of Quarter Sessions of Philadelphia County, July T., 1961, Nos. 656, 657 and 658, in case of Commonwealth of Pennsylvania v. Culber Walker.

COUNSEL

John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

John A. McMenamin, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 428 Pa. Page 246]

This is an appeal from the Order of the Superior Court affirming the judgment of sentence of the Court of Quarter Sessions of Philadelphia County.

On March 24 and 25, 1966, Culber Walker was tried before a Judge without a jury on charges of conspiracy, assault and battery, aggravated assault and battery, and aggravated robbery. He was found guilty on all charges and sentenced to one to ten years. He thereafter appealed to the Superior Court, and from its Order we granted an allocatur. The facts surrounding the crimes for which he was convicted may be summarized as follows:

On July 1, 1961, two masked men came into Harry Cohen's store and robbed him of approximately $200. One of the men hit Cohen on the head with the butt of his gun. As a result of this blow, Cohen bled profusely. Mrs. Cohen, who was in the back of the store, was also struck and injured by the robbers. A bystander, Mrs. Jacqueline Moore, noticed the two men coming out of the store and noted that they were wearing masks. She saw the men jump into a white or cream-colored car, and noticed the license plate on the car. Neither Cohen nor his wife (who called the police) was able to identify Walker as one of the men who entered the store. Moreover, Mrs. Moore was not able to identify Culber Walker as one of the men (robbers) who came out of the store or jumped into the car. She testified that the car bore a New York license and that shortly before the men came out of the store she noticed someone was working on the car. Moreover, she admitted that she had testified at Walker's preliminary hearing that Culber Walker was not the man working on the car.

This robbery occurred at about 4:00 P.M. At about 8:00 P.M., Culber Walker approached two policemen

[ 428 Pa. Page 247]

    and stated that he had heard that his car was wanted by the police, and he wanted to know if this was true. The officers had apparently missed a broadcast pertaining to Culber Walker's car. Walker was not detained. However, the officers noted among Walker's papers a membership card in the Woodbine Club. Several hours later, the officers finally heard the broadcast that Walker's car was involved in a robbery. Culber Walker was the owner of a cream-colored automobile bearing the same New York license number noted by Jacqueline Moore, and neither he nor any witness explained how the robbers obtained his car if he was not with them. The officers then proceeded to the Woodbine Club, where Walker was arrested. A search of Culber Walker revealed three (dollar) bills stained with human blood. The blood was not tested with respect to its type or age.

The dollar bills which were on the person of the defendant and seized by the police at the time of defendant's arrest were admissible at defendant's trial: Ker v. California, 374 U.S. 23; Com. ex rel. Ensor v. Cummings, 416 Pa. 510, 514, 207 A.2d 230; Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693. In Commonwealth v. Gockley, 411 Pa., supra, the Court said (pages 446-447): ". . . [I]t is not a violation of the Constitutional guarantee against unreasonable search and seizure for officers when making a lawful*fn* arrest with or without a search warrant, to discover and seize any evidence, articles or fruits of crime found upon the prisoner or upon the premises under his control at the time of his lawful arrest, if it is ...


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