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decided: December 1, 1975.


Appeals from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1972, No. 1058, and Nos. 3951 to 3954, inclusive, in case of Commonwealth of Pennsylvania v. Walter Hill, also known as Robert Allen Mills and Walter A. Burgess.


Calvin S. Drayer, Jr., Assistant Public Defender, with him Arthur J. King and Paul A. Prince, Assistant Public Defenders, for appellants.

Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Concurring and Dissenting Opinion by Jacobs, J. Watkins, P. J., and Van der Voort, J., join in this opinion.

Author: Spaeth

[ 237 Pa. Super. Page 546]

Appellants, who were co-defendants, were convicted by a jury of charges arising out of a robbery committed on December 11, 1972, in Dominic Molettiere's grocery store, Molettiere's Market in Lansdale. Specifically, they were convicted of burglary (Indictment No. 3951), robbery with accomplice and by force (Indictment No. 3952), assault and battery and aggravated assault and battery (Indictment No. 3953), and conspiracy (Indictment No. 3954). Each appellant was sentenced to 10 to 20 years on No. 3951, 10 to 20 years on No. 3952, 1 to 2 years on assault and battery, and 1 1/2 to 3 years on aggravated assault and battery, on No. 3953, and 1 to 2 years on No. 3954, these sentences to run consecutively. The total sentence for each appellant was therefore 23 1/2 to 47

[ 237 Pa. Super. Page 547]

    years. Appellants have raised eleven issues on appeal.*fn1

The first issue is whether the trial judge erred in refusing to hear appellant Burgess's oral motion to suppress a statement allegedly obtained in violation of his right to the advice of counsel. In denying the motion, the judge cited Pa. R. Crim. P. 323(b), which provides that "[u]nless the opportunity did not previously exist, or the interests of justice otherwise require," a motion to suppress shall be made "not later than ten days before the beginning of the trial session in which the case is listed for trial . . . ." However, whether the judge's application of this rule was proper need not be decided, for the statement complained of was never introduced in evidence. Any error in denying the motion to suppress was thus harmless. Commonwealth v. Blose, 160 Pa. Superior Ct. 165, 50 A.2d 742 (1947).

The second and seventh issues concern the validity of appellants' arrest and subsequent search, one hour after the robbery, in Mattero's Junk Yard, a few blocks from Molettiere's Market.

"It is well established that a police officer is authorized to arrest without a warrant where he has probable cause to believe that a felony has been committed and that the person to be arrested is the felon . . . 'Probable cause' is said to exist where facts and circumstances within the knowledge of the arresting officer are reasonably trustworthy and sufficient in themselves to warrant a man of reasonable caution to believe that the person to be arrested has committed the offense." Commonwealth v. Jackson, 450 Pa. 113, 116-17, 299 A.2d 213, 214 (1973).

"[T]he evidence required to establish 'probable cause' need not amount to that required to convict . . . however, it must be more than that which gives rise to mere suspicion." Commonwealth v. Dussell, 439 Pa. 392, 397, 266 A.2d 659, 662 (1970).

[ 237 Pa. Super. Page 548]

Detective Frank S. Allenbach testified at appellant Hill's suppression hearing. The defense offered no evidence and relied solely on argument. Detective Allenbach stated that he received a message over police radio to proceed to the vicinity of Mattero's Junk Yard. The message indicated that Molettiere's Market had been robbed and the robbers were seen running in the direction of the junk yard. Other officers, who were on the scene and had cordoned off the field surrounding the junk yard, gave Allenbach descriptions of the robbers. Approximately one hour after the robbery, Allenbach observed two men running through the field. Another officer stopped the men. As they fit the description of the robbers, Allenbach placed them under arrest and searched them.

On the basis of Allenbach's testimony, the court found probable cause for the arrest. The one hour gap between the robbery and the apprehension of appellants was not fatal to this finding, because the area where appellants were arrested was cordoned off by the police so that no one could enter or leave it, and appellants matched the description of the robbers given Allenbach by the other officers at the scene. This combination of factors was sufficient to establish probable cause. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), and Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970), are distinguishable. See Whiteley v. Warden, 401 U.S. 560 (1971); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972) and Commonwealth v. Gilmore, 447 Pa. 21, 288 A.2d 757 (1972). Probable cause to arrest having been found, there was probable cause for the search incident to that arrest. Sibron v. New York, 392 U.S. 40 (1968).

At the trial, testimony was given by, among others, Molettiere, one of the victims of the crime,*fn2 and various

[ 237 Pa. Super. Page 549]

    police officers, including Officer Guenst, the first officer to respond to Molettiere's call to the police. According to Guenst, Molettiere gave him this description of the robbers: "two black males, one tall and thin in dark jacket, and one shorter, stocky build." Molettiere told him which way the two robbers had fled, and he set out in pursuit. On his way he met some boys,*fn3 who told him they had observed two men who fit Molettiere's description, running toward Mattero's Junk Yard. As a result of this information, he changed direction, and sent a message over the police radio. In response to the message, police, arriving from several directions, cordoned off the junk yard. Upon observing two men running through the yard, one officer shouted, "Halt, halt", and both appellants were apprehended. This testimony was contradicted by Molettiere in that Molettiere stated three times that he never gave Guenst a description of the robbers. Appellants contend that this conflict between Guenst and Molettiere at the trial*fn4 somehow affected the finding of probable cause at the suppression hearing. We cannot agree with this proposition. As has been noted, probable cause at the suppression hearing was determined from Detective Allenbach's testimony. Commonwealth v. Gilmore, supra. Subsequent conflicting testimony by other witnesses raised an issue of credibility for the trier of fact. It did not have any retroactive effect.

The third issue concerns whether a mistrial should have been declared in response to either or both of two motions for mistrial.

The first motion for mistrial was made when Molettiere gave an answer from which, defense counsel argued,

[ 237 Pa. Super. Page 550]

    the jury could infer that appellant Burgess had a criminal record. With certain exceptions not pertinent here, see Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955), Commonwealth v. Williams, 227 Pa. Superior Ct. 103, 323 A.2d 135 (1974), the admission of evidence of a defendant's criminal record is reversible error. Commonwealth v. Turner, 454 Pa. 439, 311 A.2d 899 (1973); Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973). However, "[t]o warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense." Commonwealth v. Banks, 454 Pa. 401, 411, 311 A.2d 576, 581 (1973). In addition, in appraising prejudice it may be important whether the defendant himself invited the answer. Commonwealth v. Dalton, 199 Pa. Superior Ct. 388, 185 A.2d 653 (1962).

In response to questioning by counsel for appellant Burgess, Molettiere testified as follows:

"Q. Did you have occasion to speak with either of these gentlemen over the phone?

A. Yes, sir, I had a phone call.

Q. You had a phone call. Who was that call from?

A. He said it was Burgess.

Q. Burgess?

A. He said he was out of jail."

Appellants contend that this was an unsolicited answer that indicated that Burgess had been in jail at some time for the commission of another crime. If Molettiere's answer had been to a question posed by the Commonwealth, the issue of mistrial would have been troublesome.*fn5 However, the answer was to a question by the defense, and it is by no means clear that it was unsolicited. Molettiere might easily have understood the last

[ 237 Pa. Super. Page 551]

    question, "Burgess?", as challenging the accuracy of his immediately preceding answer. In fact, unless counsel had not heard the answer, no other reason for asking "Burgess?" is apparent. On this understanding the witness might naturally reply by supporting his identification by quoting what the person with whom he had been talking had said. Moreover, the trial judge gave a prompt curative instruction to the jury; and neither the prosecution nor the defense pursued the matter. In these circumstances the denial of the motion for mistrial will not be disturbed.

The second motion for mistrial was made after testimony for the Commonwealth by Detective James Hansley, directly contradicting the testimony of Molettiere. Molettiere had testified that while he was in the hospital, the police brought both appellants into his room, but that at that time he could not identify them as the robbers. The detective, however, testified:

"By Mr. Levin [Assistant District Attorney]

Q. Was an identification made [at the hospital by Mr. Molettiere]?

A. Mr. Molettiere said he believed that Mr. Hill was one of the ...

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