Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, April T., 1968, No. 1, in case of Commonwealth of Pennsylvania v. Freddy Butler.
Thomas E. Waters, Jr. and Horace A. Davenport, with them Waters, Fleer, Cooper & Gallager, and Gerber, Davenport & Wilenzik, for appellant.
William T. Nicholas, First Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result.
On March 11, 1968, seventy-two year old Concezio Cane was attacked while he was walking on DeKalb Street in the Borough of Norristown. A person on the
opposite side of the street heard Cane's screams and saw four Negro figures bending over Cane's body. The headlights of a passing automobile illuminated the scene, permitting the witness to see the incident clearly.
The police were called, and Mr. Cane was rushed to the hospital, but it was too late. He died on the operating table as a result of the stab wounds and lacerations he suffered in the attack and a severe loss of blood.
The police questioned James Denby, who was identified as one of the four men present at the attack. He identified Willie Stafford, Isaac Thomas, and Freddy Butler, appellant, as the other three men, and stated that Stafford and Butler were the men responsible for the attack. By the nature of the attack on Cane and Cane's wounds, the police suspected that the clothing which Butler had worn during the stabbing would have to be bloodstained if he were, in fact, the man who stabbed Cane. A search warrant was obtained on the basis of Denby's statement, and bloodstained clothing was discovered in Butler's residence. The bloodstains were of the same type as the blood of the victim.
Butler was tried and convicted by a jury of first-degree murder and was sentenced to life imprisonment. After denial of his post-trial motions and entry of the judgment of sentence, Butler brings this appeal.
On appeal, Butler contends that the search warrant authorizing a search of his room for various unspecified items of clothing was issued without probable cause. In raising this contention, Butler emphasizes that Denby admitted at Butler's trial that Denby did not remember how Butler was dressed. From this, Butler concludes that the police were on a fishing expedition. However, the circumstances of the attack, ...