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COMMONWEALTH PENNSYLVANIA v. CARL WHITSON (03/18/75)

decided: March 18, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
CARL WHITSON, APPELLANT



COUNSEL

John J. Dean, John R. Cook, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, D. Michael Fisher, Asst. Dist. Attys., Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joins. Nix and Manderino, JJ., dissent.

Author: O'brien

[ 461 Pa. Page 103]

OPINION OF THE COURT

Appellant, Carl Whitson, was tried by a judge and jury and found guilty of murder in the first degree.

[ 461 Pa. Page 104]

Post-trial motions were denied, and appellant was sentenced to life imprisonment. This appeal followed.

On January 16, 1973, Mrs. Beverly Moore was walking in a westerly direction along Fifth Avenue in the City of Pittsburgh. A passing motorist observed Mrs. Moore and saw a tall, thin, black man with his arm around her back and his right arm in front of her, as if he were supporting her. A flash of light was seen near Mrs. Moore's face, and a gunshot was heard. As Mrs. Moore fell to the ground, the person whose arms were around her took her purse and entered the passenger side of a vehicle parked along the curb. A description of the automobile and its license plate number were furnished to the police, and investigation revealed that the auto belonged to appellant. Appellant was arrested, and confessed to the crime for which he was ultimately convicted.

Appellant first argues that his confession should have been excluded because it was the product of an illegal arrest. We do not agree. Appellant was arrested pursuant to a warrant that he alleges was defective because the magistrate was not presented with sufficient facts to establish probable cause. While agreeing with appellant's contention concerning the warrant, we are of the opinion that the knowledge possessed by the officer in charge of the investigation was sufficient to establish probable cause for a warrantless arrest. Officer Pampena, the officer in charge of the investigation, who dispatched the arresting officers, possessed the following information which would establish probable cause for a warrantless arrest: He knew that Mrs. Moore's assailant was a tall, black male; that after the shooting the assailant entered a car with license plates that proved ownership by Carl Whitson, appellant; that appellant was a security guard employed by Allied Detective Agency and was issued a .38-caliber revolver; and that .38-caliber shells were found near the murder scene. Based

[ 461 Pa. Page 105]

    upon this information, the officer in charge certainly possessed enough information to establish probable cause for appellant's arrest. See Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972). Moreover, appellant's argument that the information possessed by Officer Pampena would not establish probable cause, because it was not possessed by the arresting officers, must fail. In Kenney, this issue was also raised and we dismissed it, stating:

". . . In the context of the present facts we do not believe it was necessary for the arresting officer to have knowledge of the information which supported the probable cause for arrest. The operative question is whether Lieutenant Patterson, the officer who ordered the arrest, had sufficient information to support a finding of probable cause." At page 566, 297 A.2d at page 796.

Appellant next argues that his confession was the product of an unnecessary delay between his arrest and arraignment, and, therefore, should have been excluded. We do not agree. Appellant was arrested on January 17, 1973, at or about 1:15 p.m., by officers of the Pittsburgh police force. He arrived at police headquarters at 2:15 p.m. and was advised of his rights. Appellant then gave police a statement in which he outlined his activities on the day of the murder. This initial interview lasted approximately thirty minutes. The police then left appellant alone and proceeded to check his story. At 6:00 p.m., appellant was again interviewed, and at 6:10 p.m. he gave an oral admission, which culminated in a formal statement concluded at 6:50 p.m. At 7:00 p.m., appellant was arraigned. In Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), we held that evidence reasonably related to an unnecessary delay between arrest and arraignment must be excluded. In the instant case, we are of the opinion that the delay between appellant's arrest and arraignment was not unnecessary.

[ 461 Pa. Page 106]

The record reveals that after appellant gave his initial statement to the police, in which he detailed his activities on the night of the murder, appellant was left alone and his story was checked by the police officers. In Futch, we held that a delay in arraignment caused by the necessity to investigate a defendant's story was permissible. In Futch, we adopted the reasoning of the District of Columbia Court of Appeals, wherein Judge Burger, now Chief Justice Burger, stated in his concurring opinion in Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, 579 (1968) (concurring opinion):

"'Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make same [sic] limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one arrested.' Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574, 579 (1968) (concurring opinion)." 447 Pa. at page 392, 290 A.2d at page 418.

In the instant case, the record reveals that appellant's initial questioning ended at 2:47 p.m., and that from 2:47 p.m. until 5:45 p.m., appellant was left alone by the police while his story was checked out. At 5:45 p.m., appellant's questioning was resumed, with an oral admission coming at 6:10 p.m. Under these facts, we conclude that appellant's delay in arraignment was caused by a necessary step in the police process, the checking of his story, a reason sanctioned by this court in our Futch decision.

Appellant next argues that the warrant issued for the search of his automobile was defective because the reliability of the informant was not established before the issuing magistrate. We do not agree. The search warrant for appellant's automobile was based upon the testimony of Officer Nave, who related to the

[ 461 Pa. Page 107]

    magistrate that he received information from Detective Swearingen, who had spoken with an eyewitness who had given Swearingen a description of appellant and a description of the vehicle appellant had entered after the murder; the eyewitnesses' name was also given to the magistrate. In the facts of this case, the reliability of the informant was established because he was an eyewitness to the crime. See United States v. Bell, 457 F.2d 1231 (Fifth Circuit 1972). See also Commonwealth v. Evans, 210 Super. 454, 233 A.2d 585 (1971).

Appellant next argues that the trial judge committed prejudicial error in his charge. Appellant contends that the trial judge's summary of the evidence was prejudicial to his case because the judge did not review the testimony given on cross-examination of Commonwealth witnesses, but only that of the appellant himself. The record reveals that the judge merely recited several facts brought out on cross-examination of appellant, and instructed the jury that it was their recollection of the facts that was to form the basis of their decision, rather than his. Under these facts, we find no error in the trial judge's summation of the evidence.

Appellant finally argues that the trial judge prejudiced his case when he stated that counsel's motion for a mistrial was frivolous. This response to appellant's request for a mistrial was given at a side-bar conference, out of hearing of the jury, and could hardly have prejudiced appellant.

Judgment of sentence affirmed.

[ 461 Pa. Page ...


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