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.
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
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
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 ...