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decided: May 13, 1975.



John J. Dean, Stephen P. Swem, Pittsburgh, for appellant.

Robert L. Eberhardt, Asst. Dist. Atty., John J. Hickton, Dist. Atty., John M. Tighe, First Asst. Dist. Atty., Dennis Kissane, Asst. Dist. Atty., Pittsburgh, for appellee.

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

Author: Jones

[ 461 Pa. Page 599]


Harry DeWolf, a black, twenty-three year old employed college student, was shot twice in the abdomen on October 2, 1971, while he was attempting to enter his car in a parking lot in Pittsburgh. Two young boys had observed a black Chevrolet in the same parking lot a few minutes before the shooting. They and another man heard shots, then saw the car speed from the parking lot driving the wrong way on a one-way street. Less than fifteen minutes later, Eddie Wilder and Richard Staples were arrested. The victim's briefcase and the murder weapon were discovered in the Staples' car. Appellant and Staples were both charged with armed robbery, assault with intent to kill and violation of the Uniform Firearms Act. Wilder did not post bail and was incarcerated. The victim died twenty-four days later on October 26, 1971. In separate jury trials, Wilder was convicted of murder in the first degree and Staples of murder in the second degree. (Staples' conviction was affirmed per curiam at 457 Pa. 468, 326 A.2d 317 (1974).) Counsel for appellant filed a post-trial motions, which were denied. Counsel failed to take a timely appeal; petition for leave to appeal nunc pro tunc was denied. Eddie Wilder then filed a petition under the Post Conviction Hearing Act,*fn1 alleging, inter alia, the unconstitutional suppression of evidence by the Commonwealth and the lack of probable cause in the arrest and search and seizure. Wilder was granted the right to file

[ 461 Pa. Page 600]

    post-trial motions nunc pro tunc, limited to the probable cause issue, which were denied; that issue is here on direct appeal. The confrontation issue raised by appellant in his PCHA petition was appealed separately.*fn2 We shall consider the appeals together.

The Fourth Amendment permits a warrantless arrest under exigent circumstances if based upon probable cause. The crucial test is whether there were facts available which would justify a person of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1966); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Mere suspicion is not enough; the burden is on the Commonwealth to show with reasonable specificity facts sufficient to establish that probable cause existed. Commonwealth v. Jones, 457 Pa. 423, 427-428, 322 A.2d 119, 122-123 (1974).*fn3

There is no question that a crime had been committed. The only question is whether there was sufficient information at the time of the arrest to reasonably justify a belief by police that the Staples car was involved in the crime and that Wilder was involved as well. We find that there was. The arresting officers received a radio report of a full-size 1965 black Chevrolet, possibly

[ 461 Pa. Page 601]

    with a loud muffler, occupied by two black males. The car sped from the scene going the wrong way on the one-way street. Although Staples' car was traveling at a normal speed and observing traffic signals when the officers stopped it, the car matched the full description broadcast over the radio. Furthermore, the arrest took place within fifteen blocks and less than fifteen minutes from the shooting. And, although the fact of appellant's mere presence in the car at that time might not be sufficient to establish probable cause for his arrest, a combination of factors provided probable cause for appellant's arrest. Probable cause for Wilder's arrest depended upon an inference raised by his presence in the Staples car after the crime had occurred.*fn4 All circumstances surrounding the apprehension can be taken into account in determining probable cause. Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973). Moments before the officers stopped the Staples car, they heard over the radio a report by another officer that the suspected car had sped past him at the Bloomfield Bridge near to where the arresting officers first observed the car. The physical description of the car with occupants and the circumstances surrounding the ultimate apprehension gave police sufficient reason to believe that this was the car which had been at the scene. Wilder's presence in the car so shortly after the shooting led to the reasonable inference by police that he was the same person seen in the car fleeing the crime and a probable participant in the shooting. Both Wilder's arrest and the seizure of the briefcase and murder weapon were based upon probable cause. Cf. Chambers v. Maroney, 399 U.S. 42, 46-47, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Appellant argues in his PCHA appeal the unconstitutional suppression of evidence by the Commonwealth in

[ 461 Pa. Page 602]

    its refusal to allow him to confront the victim. The issue which appellant raises was given constitutional dimension in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That decision was the culmination of a developing line of cases recognizing the profound effect that the suppression of evidence produced upon a defendant's right to a fair trial.*fn5 Brady affirmed that "suppression by the prosecution of evidence favorable to an accused upon request violates due process [of law] where the evidence is material either to guilt or to punishment." Id. at 87, 83 S.Ct. at 1196. (Emphasis added). Two years later we recognized that under some circumstances state*fn6 refusal to obtain disclosure of vital information may amount to a trial lacking in due process. Commonwealth v. Smith, 417 Pa. 321, 208 A.2d 219 (1965).*fn7

[ 461 Pa. Page 603]

While the Brady and Smith courts were necessarily concerned with the disclosure of documentary evidence, the same principles were applied to the defendant's right of access to a witness in Lewis v. Lebanon Court of Common Pleas, 436 Pa. 296, 260 A.2d 184 (1969). Consistent in the belief that the primary duty of a district attorney is not to convict but to see that justice is done Lewis held that, in the absence of an affirmative and convincing showing of exceptional circumstances or compelling reasons, the district attorney must not interfere with the right of a defendant to interview an otherwise willing witness. The issue is not the form which the interference takes but whether it is effective. Id. at 302-03, 260 A.2d at 188.

Wilder contended at trial that he was not in the Staples car until it was out of the vicinity where the shooting occurred. The sum of the Commonwealth's case was the evidence seized from the Staples car and appellant's presence therein shortly after the shooting. It is uncontradicted that while appellant was held in custody and while the victim was in the hospital, appellant made prompt and repeated requests for confrontation, all of which were denied. Identification requested by Wilder upon his arrest was crucial to his defense.*fn8 Shot twice in the abdomen, the victim had been attacked in a face-to-face confrontation. The victim, a black, twenty-three

[ 461 Pa. Page 604]

    year old college student, did identify his assailants as "two black kids," as the preliminary hearing record reveals. Since there were no independent eyewitnesses, the victim was the only person who could shed any light upon the identity of the assailants. No reason is found in the record for precluding confrontation with the victim.*fn9

As we said in Smith, 417 Pa. at 333, 208 A.2d at 219, it would seem that "[e]very possible sliver of light which [could] be shed on this question should be welcome, if not indeed invited and demanded." It is inexplicable on this record why appellant's request for confrontation was not granted, and any inference to be drawn therefrom is to be adverse to the prosecution, not to appellant. The victim was twenty-three years old. His first words after being shot were to the effect that he had been attacked by "two black kids." Staples, the driver, was twenty-three at the time; Wilder, the appellant, was thirty-nine, almost forty. Thus, identification evidence sought by appellant had at least the potential for exculpation. The police refusal to take appellant upon request to the victim effectively precluded confrontation. Suppression of the material evidence of identification was becoming irreversible and complete since the victim was dying. Identification had to be prompt or not at all. We note that the urgency of the situation has already been acknowledged by a higher court.

"Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, 'He is not the man' could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate

[ 461 Pa. Page 605]

    action, and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room."

Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).

Under the circumstances of this case as presented in the record before us, appellant was entitled upon request to a confrontation with the victim. The authorities have the right to withhold confrontation upon request only under circumstances where the victim's condition is such as to make meaningless the procedure. Absent a clear showing that the victim was mentally or physically unable to cooperate, confrontation under these facts was mandated. The record before us lacks evidence of the victim's condition at the time of Wilder's request.

Accordingly, the order dismissing appellant's PCHA petition for exculpatory evidence is vacated and the record remanded to the trial court for an evidentiary hearing in accordance with the Act of January 25, 1966, P.L. (1965) 1580, § 9, 19 P.S. § 1180-9, to determine whether the victim's condition comprised exceptional and compelling reasons which could justify the authorities' failure to afford appellant confrontation.

ROBERTS, Justice (concurring and dissenting).

I join in that portion of the opinion of the Court which requires that appellant be granted post-conviction relief unless the Commonwealth produces affirmative and convincing evidence of exceptional circumstances or compelling reasons justifying its denial of appellant's request to confront Harry DeWolf.

[ 461 Pa. Page 606]

However, if the Commonwealth fails to produce that evidence, the appropriate relief is discharge; because DeWolf is now dead and a show-up thus impossible, appellant could never receive a fair trial. Therefore, I would remand for a hearing without deciding the probable cause issue, and, if relief should not be granted, permit an appeal in due course in which the question of probable cause could then be considered.

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