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decided: January 29, 1976.



Frank H. Morgan, Jr., Media, for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Media, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix and Manderino, JJ., concur in the result.

Author: Roberts

[ 466 Pa. Page 106]


Appellant Curtis Wilbur Davis was arrested in December 1968 and charged with murder, voluntary and involuntary manslaughter and robbery. On September 25, 1969, appellant was found guilty, after a jury trial, of murder in the first degree, voluntary manslaughter and two counts of robbery. On appeal, this Court reversed the judgments of sentence and granted a new trial because of prejudicial remarks made by the district attorney during the trial. Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973). On remand, appellant was retried before a jury and found guilty of murder in the first degree and robbery. Judgments of sentence of life imprisonment on the murder count and ten to twenty years, to run consecutively, on the robbery count, were subsequently imposed. On this appeal,*fn1 appellant advances numerous challenges concerning the admissibility of certain evidence, the sufficiency of the evidence, and other errors alleged to have occurred during trial. We find none of these claims to be meritorious and affirm the judgments of sentence.


Admissibility of Evidence

Appellant claims that the trial court erred in refusing to suppress evidence because: (1) he was illegally arrested; (2) the search incident to his arrest was overly broad; and (3) the warrant to search his apartment was issued without a showing of probable cause.

Appellant's original arrest and the search of his apartment were made pursuant to warrants issued on December

[ 466 Pa. Page 10720]

, 1968. At that time, he was suspected of the armed robbery of one Newsome. During a search of his apartment following his arrest, numerous items were found, including a weapon which linked appellant to another armed robbery which resulted in a murder. On December 23, 1968, while still in custody, appellant was arrested for crimes arising from this second incident. The conviction for these crimes is the subject of this appeal.*fn2

Appellant claims that the December 20 arrest was illegal because the officers who executed the arrest warrant were outside their jurisdiction. The warrant was issued in Chester, where the robbery occurred, to Chester City Police Officers. They arrested appellant at his work address in the borough of Marcus Hook, located near Chester. Appellant claims that the Act of August 6, 1963, P.L. 511, § 1*fn3 requires a holding that the Chester City Police acted beyond their authority. At the time of appellant's arrest that statute provided:

"Any police officer in the employ of a county, city, borough, town or township may arrest, with or without a warrant, any felon beyond the territorial limits of the political subdivision employing such officer for a felony committed by the felon within the political subdivision employing the police officer if such officer continues in pursuit of the felon after commission of the felony."

However, at the time of his arrest, the Act of March 31, 1860, P.L. 427, § 3, as amended (formerly codified as 19 P.S. § 3) was still in effect. That statute read in relevant part:

"In case any person against whom a warrant may be issued by any judge or alderman of any city, or justice

[ 466 Pa. Page 108]

    of the peace of any county in this commonwealth, for any offense there committed, shall escape, go into, reside, or be in any other city or county out of the jurisdiction of the judge, alderman, or justice of the city or county granting such warrant as aforesaid, it shall and may be lawful for the person to whom such warrant was originally directed, or the person having such warrant for execution, to execute the same, and arrest such offender in such city or county, out of the jurisdiction of the alderman, justice or justices granting such warrant . . . ."

The Chester City Police were acting within their authority when they arrested appellant.*fn4

Appellant claims that the arresting officers acted illegally by seizing his apartment key incident to the arrest. He apparently believes that, because the key was not mentioned in the search warrants of his apartment, the officers were required to return the key and obtain another search warrant.

[ 466 Pa. Page 109]

This claim is wholly without merit. The officers had authority to search the area within appellant's immediate control incident to the arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968). There is no allegation that the key was not within appellant's immediate control. Since the search was valid, the officers could seize "evidence which would aid in apprehending and convicting criminals." Warden v. Hayden, 387 U.S. 294, 306, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967); see Commonwealth v. Bundy, supra. Appellant admits that, under this definition, the key was a seizable item; in fact, the key was used at trial to show that he resided in the apartment where the weapon was found.*fn5

Finally, appellant asserts that the search warrants for his apartment and the arrest warrant were issued illegally. Prior to the issuance of a warrant, information must be presented to the magistrate which is sufficient to persuade a reasonable person that probable cause exists to conduct a search. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 18 Crim.L.Reptr. 4089 (Dec. 3, 1975); Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The same standard of probable cause must be met for the issuance of an arrest warrant. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). When, as here, probable cause is based on information

[ 466 Pa. Page 110]

    received from an informant, two requirements must be met:

"First, in order to assure that the 'tip' is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect possessed the fruits or evidence of a crime. Second, in order to reduce the possibility that a 'tip' meeting the first standard is merely a well-constructed fabrication, the officer must have some reasonable basis for concluding that the source of the 'tip' was reliable. Spinelli v. United States, 393 U.S. 410, 415-16, 89 S.Ct. 584, 588-90, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964); Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A.2d 510, 512 (1971)."

Commonwealth v. Milliken, supra at 313, 300 A.2d at 80.

The following evidence was presented by the police to the magistrate to justify issuance of the warrant: Newsome, the victim of the first robbery, gave a physical description of his assailant which also described appellant and identified appellant as the assailant from police photographs; Newsome described the getaway car as having blue-green color with a wide white stripe on both sides, and the police determined that appellant owned and operated a car which fit this description; Newsome stated that this assailant used a hooded jacket and a .32 caliber revolver; police determined that appellant had two separate residences. Although Newsome did not testify, he signed the affidavit for arrest and was present at the hearing. On the basis of this information, the magistrate issued four search warrants for the hooded jacket and the .32 caliber revolver, for each of appellant's

[ 466 Pa. Page 111]

    two residences and for each of two cars under his control and an arrest warrant.*fn6

These facts are sufficient to meet the standard for the issuance of a search or arrest warrant. The magistrate was informed of the robbery, of appellant's probable participation, and of the instrumentalities used. He could reasonably conclude that the tip was not a "rumor" and that the perpetrator would possess evidence of the crime. He could conclude that the tip was reliable because the informant, who was the victim of the crime, was the eyewitness and positively identified appellant. See Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972).

Appellant argues that the police were conducting a "fishing expedition" because they sought to search two apartments and two cars. However, the magistrate was justified in issuing four warrants since he was presented with evidence that appellant resided in both apartments and had access to both cars. Appellant also asserts that probable cause does not exist because, at the suppression hearing, an arresting officer gave conflicting testimony concerning the color of the jacket and hood. This claim

[ 466 Pa. Page 112]

    is meritless. The warrant itself defined with sufficient particularity the items to be seized.

The suppression court properly denied appellant's motion to suppress evidence.


Sufficiency of the Evidence

There were two eyewitnesses to the crime. One, the victim's daughter, stated that the assailant resembled appellant in age, color and size but was unable to identify appellant as the killer. The other, a customer in the store where the murder took place, positively identified appellant at trial. In addition, the Commonwealth presented the murder weapon and the hood and jacket which were used during the robbery. These items were found in the apartment where appellant resided with another person. There was sufficient evidence to support an inference that appellant had placed the incriminating evidence in his apartment after the robbery.

The test for determining whether the evidence is sufficient to support a conviction is:

"[W]hether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt."

Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); see Commonwealth v. Rose, 463 Pa. 264, 266, 344 A.2d 824, 825 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975); Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972); Commonwealth v. Young, 446 Pa. 122, 123, 285 A.2d 499, 500 (1971). The evidence here meets this test. The jury could conclude, based on circumstantial

[ 466 Pa. Page 113]

    evidence and identification testimony, that appellant perpetrated the robbery and shot the victim during that robbery. This constitutes murder in the first degree.

Appellant argues that the trial court erred because it neither struck the testimony of the eyewitness nor instructed the jury to disbelieve his testimony.*fn7 On crossexamination that witness stated that he was unable to identify appellant at a lineup after the robbery and made contradictory statements concerning details of the crime.

This Court has repeatedly held that it is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Rose, supra at 268, 344 A.2d at 826; Commonwealth v. Robson, supra at 627, 337 A.2d at 579; Commonwealth v. Murray, supra at 609, 334 A.2d at 257; Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). Here, the jury chose to believe the Commonwealth witness. The fact that he was unable to identify appellant at the lineup is relevant to only the weight and credibility of his testimony. Commonwealth v. Tate, 229 Pa. Super. 202, 323 A.2d 188 (1974); see Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971). The trial court carefully instructed the jury concerning the credibility of eyewitness identification, and no exceptions were taken to that portion of the charge. In these circumstances, we find no basis for disturbing the jury's determination.

[ 466 Pa. Page 114]


Alleged Trial Errors

Appellant claims that the district attorney's conduct at the suppression hearing and at trial was so prejudicial that he is entitled to a new trial. The record does not support this contention. To the contrary, the alleged errors relied on by appellant were not significant, and the precautionary measures taken by the court to avoid any prejudice were adequate remedies.*fn8

Appellant asserts that the court committed a series of prejudicial errors which require reversal of the judgment of sentence. We disagree. The record discloses

[ 466 Pa. Page 115]

    that the court did not abuse its discretion in any of the rulings challenged by appellant.*fn9

Appellant also argues that prejudicial error occurred because jurors saw him handcuffed when he was in the hall outside the courtroom. The record discloses that on two occasions during voir dire appellant was handcuffed in the hall at times when jurors could have seen him.

[ 466 Pa. Page 116]

An essential element of a fair trial is the presumption of a defendant's innocence. United States v. Fleischman, 339 U.S. 349, 363, 70 S.Ct. 739, 746, 94 L.Ed. 906 (1950); Commonwealth v. Bonomo, 396 Pa. 222, 229, 151 A.2d 441, 445 (1959). Thus, a defendant should be allowed to wear the garb of innocence and should not, absent exceptional circumstances, be physically restrained while before the jury. Commonwealth v. Mayhugh, 233 Pa. Super. 24, 336 A.2d 379 (1975); Commonwealth v. Cruz, 226 Pa. Super. 241, 311 A.2d 691 (1973); Kennedy v. Cardwell, 487 F.2d 101 (6th Cir.1973); Way v. United States, 285 F.2d 253 (10th Cir.1960). As stated in the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 4.1(c) (Approved Draft 1968):

"Defendants . . . should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. . . ."

Cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

However, appellant here has not established that the two incidents he complains of created sufficient prejudice to warrant a grant of a mistrial. At a hearing on this issue, he offered no testimony to indicate that a juror at the trial did in fact see him. Nor did he request the court to question the jury concerning the incident or to give any form of cautionary instruction. The court specifically stated that it would give such an instruction if appellant so requested and that it would take every precaution to ensure that appellant was not seen by the jury while handcuffed. Because the record is devoid of a showing of prejudice and because appellant did not request, despite the court's explicit offer, either a voir dire examination or cautionary instructions, we hold that the court acted properly in refusing appellant's request for a mistrial. See Commonwealth v. Evans, 465 Pa. 12, 348

[ 466 Pa. Page 117]

A.2d 92 (1975); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680, appeal dismissed, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974).

Finally, appellant contends that, assuming no single assignment of error compels a new trial, the asserted errors collectively require reversal. We disagree. In Commonwealth v. Martinolich, supra, this Court was confronted with a similar claim. We stated:

"'Although a perfectly conducted trial is indeed the ideal objective of our judicial process, the defendant is not necessarily entitled to relief simply because of some imperfections in the trial, so long as he has been accorded a fair trial. "A defendant is entitled to a fair trial but not a perfect one."' Commonwealth v. Hill, 450 Pa. 477, 480-81, 301 A.2d 587, 590 (1973) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953))."

"Our review of the record satisfies us that [the trial court] properly exercised [its] judicial responsibility and that appellant was afforded a fair and just trial. By explanation, admonition, and instruction during the course of trial and in his charge, the trial judge kept from the jury's consideration irrelevant issues, impermissible comments, and appeals to prejudice. . . . Yet, his conduct of the trial gave the jury the required latitude to decide appellant's guilt or innocence solely on the evidence properly before it."

Id. 456 Pa. at 162-63, 318 A.2d at 695 (footnotes omitted).

Here, as in Martinolich, appellant was accorded a fair and just trial.

Judgments of sentence affirmed.

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