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decided: December 29, 1971.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1968, No. 888, in case of Commonwealth of Pennsylvania v. William Matthews.


Abraham J. Brem Levy, for appellant.

Louis A. Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts joins in this dissenting opinion.

Author: Eagen

[ 446 Pa. Page 67]

William Matthews, sentenced to life imprisonment following his conviction by a jury of murder in the first degree, appeals from the judgment of sentence.

The sufficiency of the trial evidence to sustain the verdict is not questioned, nonetheless, we have studied the record and are satisfied the evidence was ample to establish Matthews' guilt of murder in the first degree beyond a reasonable doubt.

[ 446 Pa. Page 68]

From the evidence, the jury was warranted in finding that Matthews, on February 23, 1968, acting in concert with his nephew, James Williams, and a friend, James Jackson, robbed Randolph Butts in Philadelphia and during the perpetration of the robbery Butts was stabbed four times by one of the felons, causing injury which resulted in Butts' death.

Appellant cites several alleged errors during the prosecution proceedings which he asserts require a new trial. We conclude these assignments of error are without merit for the reasons that follow.

During the investigation of the crimes involved, the police apprehended and questioned Williams, who admitted having participated in the commission of the robbery, and accused Matthews and Jackson of also having participated and informed the police that Matthews had hidden the knife used in the stabbing in an apartment at a certain address. Based on this information, an investigating officer caused a search warrant to issue for the apartment. The complaining affidavit, signed by a police detective, Verbrugghe, stated the following: "On Fr. 2-23-68 about 11:00 p.m. Randolph Butts 40-N., 4-38 Green St., was taken from the highway 3856 Haverford Ave. to the Presbyterian Hosp., and pronounced dead from stab wounds of the back. Investigation disclosed that James Williams 18-N., res. 3856 Haverford Avenue took part in the robbery of Randolph Butts. James Williams stated that William Matthews 18-N., 3856 Haverford and James Jackson 19-N., 4422 Brown St., had stabbed Randolph Butts and hid the knife in the 3rd floor apartment [rear] of 3856 Haverford Ave." The warrant described the property sought as "one pocket knife" and bloody clothing worn by William Matthews on Friday, February 23, 1968.

[ 446 Pa. Page 69]

Upon arriving at 3856 Haverford Avenue at 12:30 a.m., on February 24th, (the apartment of appellant's sister), the police took appellant into custody, placed him under arrest, and pursuant to the warrant seized an eight-inch kitchen knife (otherwise described as a "butter knife").

Initially, appellant suggests that the affidavit upon which the search and seizure warrant was based lacks the requisite information for a finding of probable cause.

The foundation of the law of search and seizure is the Fourth Amendment, which is binding on the states under the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). The Fourth Amendment in pertinent part provides: "No warrants shall issue, but upon probable cause, supported by Oath or affirmation. . . ." And it is now well established that a magistrate may not constitutionally issue a search warrant until he is furnished with information sufficient to persuade a reasonable man that probable cause for the search exists. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964). The purpose of requiring this information is to give the magistrate the opportunity of knowing and weighing the facts and determining objectively for himself the need for invading a person's privacy in order to enforce the law. McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191 (1948). His decision must be based solely on the information brought to his attention. Aguilar v. Texas, supra; Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245 (1958). He must render his decision based on a commonsense reading of the entire affidavit. United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741 (1965); Commonwealth v. Payton, 212 Pa. Superior Ct. 254, 243 A.2d 202 (1968). Thus

[ 446 Pa. Page 70]

    the long standing principle, that probable cause will be determined by a "neutral and detached magistrate" and not by "the officer engaged in the often competitive enterprise of ferreting out crime", Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367 (1948), will be complied with.

The appropriate benchmark for a determination of whether a search and seizure warrant is valid is Aguilar v. Texas, supra, as explicated in Spinelli v. United States, supra. In these two cases the United States Supreme Court developed the following two-pronged test for ascertaining the validity of a warrant: "First, the application failed to set forth any of the 'underlying circumstances' necessary to enable the magistrate independently to judge of the validity of the informant's conclusions. . . . Second, the affiant-officers did not attempt to support their claim that their informant was 'credible' or his information 'reliable'." 393 U.S. 413, 89 S. Ct. at 587.

The thrust of appellant's argument seems to go to the second facet of the aforementioned test in that the requesting officer did not attempt to support his claim that the informant was credible or his information reliable. The Commonwealth counterargues that since the informant was a participant in the crime "and he personally witnessed, and was a party to, the events related to Detective Verbrugghe" this should insure his reliability.

The case law is clear that when a person is an admitted participant in a crime, and the police attempt to secure a warrant upon the information received from him, the second aspect of the Supreme Court's test is met, since the fact that the individual admits participation in the crime insures his reliability. See generally, United States v. Viggiano, 433 F. 2d 716 (2d Cir. 1970); Louie v. United States, 426 F. 2d 1398 (9th Cir. 1970);

[ 446 Pa. Page 71]

    inclined to give false information about himself, or his ...

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