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COMMONWEALTH v. GARVIN (06/28/72)

decided: June 28, 1972.

COMMONWEALTH
v.
GARVIN, APPELLANT



Appeal from judgment of Superior Court, Oct. T., 1970, Nos. 1094 and 1095, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, Nos. 452 and 453, in case of Commonwealth of Pennsylvania v. Benjamin Garvin, Jr.

COUNSEL

Neil Leibman, for appellant.

Maxine J. Stotland and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J. Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Manderino.

Author: Nix

[ 448 Pa. Page 260]

Benjamin Garvin, Jr., was arrested in Philadelphia and charged with aggravated robbery and burglary. On April 24, 1970, after waiving a jury trial, he was convicted

[ 448 Pa. Page 261]

    of both charges and sentenced to concurrent terms of imprisonment of not less than two years nor more than twenty years. Post-trial motions were denied and on appeal the Superior Court affirmed per curiam without opinion. This Court granted allocatur.

On August 14, 1969, at about 1:30 p.m., Mrs. Ferro, the owner of a beauty salon, was in her shop with her friend, Mrs. Maloney, when the appellant and his accomplice, Thomas Leging, entered and announced their intention of robbing the two ladies. While the intruders were in the shop, Leging produced a gun to support their demands for money and Garvin struck Mrs. Maloney, knocking her to the floor, and removed $68.00 from her purse. The Commonwealth's testimony established that the two men were in the presence of the victims for approximately five minutes, the lighting conditions were good and the ladies had ample opportunity to observe both men. Shortly after the men fled the police apprehended Leging, who subsequently entered a plea of guilty in a separate proceeding.

The first assignment of error was the lower court's refusal to suppress the identification evidence which they contended to be the fruits of an illegal arrest. This challenged arrest of Garvin occurred approximately three weeks later on September 4, 1969, when Officer Covotta, a member of the Philadelphia Police Department, received information by telephone as to the whereabouts of the appellant. He immediately proceeded to the designated location and placed him under arrest. After taking Garvin into custody, Officer Covotta took him directly to the beauty salon where Mrs. Ferro identified him as the other man in the holdup. Both Mrs. Ferro and Mrs. Maloney made positive in-court identifications of Garvin at the trial.

It is significant that there has been no objection raised by the appellant to the manner in which the out-of-court

[ 448 Pa. Page 262]

    confrontation with Mrs. Ferro was conducted or the absence of counsel at that time. Further, the request for suppression of the identification was made without distinction between the in-court and out-of-court identifications and was predicated solely on the theory that each was a fruit of an illegal arrest. Therefore, the issue as framed is whether the arrest was illegal and if the arrest is determined to have been illegal, whether the subsequent identification was tainted by that illegality.

The legality of an arrest without a warrant must depend upon the presence of probable cause. Ker v. California, 374 U.S. 23 (1963); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). In Bishop, this court held that probable cause exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. 425 Pa. at 181, 228 A.2d at 664-65. See also, Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968).

A review of the record in this case forces us to conclude that the arresting officer did not possess sufficient knowledge to make a determination as to the reliability of the information received. The United States Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964), mandated that before issuing a warrant a magistrate was required to be supplied with sufficient evidence which would permit him to make an independent judgment of the informant's reliability. Accord, United States v. Harris, 403 U.S. 573 (1971); United States v. Ventresca, 380 U.S. 102 (1965); Jones v. United States, 362 U.S. 257 (1960). Although Aguilar involved

[ 448 Pa. Page 263]

    a search warrant, the Supreme Court has subsequently stated in a discussion of Aguilar's standards that the judgment required of a magistrate in passing on the validity of a search warrant is basically the same as that involved when an arresting officer is determining probable cause for an arrest without a warrant. Spinelli v. United States, 393 U.S. 410, 417 & n.7 (1969). Specifically, the Supreme Court has held that "less stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus, the standards applicable to the factual basis supporting the officer's probable-cause assessment at the ...


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