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COMMONWEALTH v. HILL (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
HILL, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1972, No. 1196, in case of Commonwealth of Pennsylvania v. Joseph Hill.

COUNSEL

John H. Corbett, Jr., Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 231 Pa. Super. Page 373]

Petitioner, Joseph Hill, appeals from denial of relief under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1974-75).

On January 12, 1972, petitioner sold to an undercover agent for $50 a small foil-wrapped item, which petitioner said was heroin, and which in fact was later analyzed and found to be heroin. Eight days later, petitioner and one Lloyd Anderson met with the agent to conclude another sale. This time two ounces of heroin were sold for $2,200. Immediately afterwards, police officers on surveillance attempted to apprehend petitioner and Anderson, but they eluded the officers. A chase ensued. Petitioner and Anderson abandoned their car, ran down a hill and through a wooded area, and emerged near a highway, with the police in hot pursuit on foot and in cars. Police radio dispatches alerted all cars to watch for two armed "colored men." An officer in a patrol car responding to the radio stopped petitioner and Anderson, who were running along the highway less than half of a mile from the scene of the sale. One minute later an officer who had been chasing them joined the patrol car officer and identified them. They were searched and the bait money was recovered.

[ 231 Pa. Super. Page 374]

The next day petitioner told the police that more drugs were stashed in his home behind the stereo. Officers armed with a search warrant found these additional drugs in the location petitioner had indicated. At trial, petitioner waived a jury and was convicted of conspiracy*fn1 and possession and dealing in heroin.*fn2 Motions in arrest of judgment or for new trial were denied, and no direct appeal was filed. The present PCHA petition was filed on April 26, 1972. The court below held a hearing and denied relief. An appeal to this court followed, but a petition to remand for reconsideration was granted. On remand, relief was again denied. This appeal followed.

Petitioner first contends that the physical evidence was seized pursuant to an unlawful arrest. A warrantless arrest is justified if based upon probable cause. McCray v. Illinois, 386 U.S. 300 (1967). Probable cause has repeatedly been held to exist if "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Ker v. California, 374 U.S. 23, 34-35 (1963); Brinegar v. United States, 338 U.S. 160, 175-176 (1949); Betrand's Appeal, 451 Pa. 381, 385, 303 A.2d 486, 488 (1973). Here, even though the hurried radio dispatch, describing the suspects as two armed colored men, was general, petitioner and Anderson were running from the scene of the crime when stopped, and were within a minute identified by an officer in pursuit. Under these circumstances, there was sufficient probable cause to arrest. The search, in turn, was valid as

[ 231 Pa. Super. Page 375]

    incident to a lawful arrest. Commonwealth ex rel. Whiting v. Rundle, 414 Pa. 17, 198 A.2d 568 (1964).

Petitioner also contends that he was denied his constitutional right to effective counsel at trial. Consideration of the effectiveness of counsel necessarily encompasses both an independent review of the record and an examination of counsel's conduct of the defense in the light of available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel's assistance is constitutionally effective if the particular course chosen by him has some reasonable basis designed to protect his client's interests. Id. Petitioner submits that counsel did not make an adequate effort to ...


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