Kalvin Kahn, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Pomeroy, J., joined. Jones, C. J., and Eagen, J., concur in the result.
Appellant, Zachary Sams, age fifteen, was tried by a judge, sitting with a jury, and found guilty of murder in the first degree in connection with a gang killing on September 26, 1971, in the City of Philadelphia. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.
Appellant argues that he is entitled to a new trial because his arrest was not based on probable cause and his confession was a product of that illegal arrest. The facts surrounding appellant's arrest are as follows. On September 26, 1971, Officer Joseph Mormello received a radio message that a gang fight and stabbing had occurred in the Eleventh and Girard Streets area in the City of Philadelphia. The officer proceeded to the area, but while enroute received another radio call that indicated that Negro males were involved in the crime and that they were running south on Eleventh Street. As the officer proceeded to the scene, he saw appellant running south on Juniper Street, which was one and onehalf blocks from the scene of the killing. The officer, having no description other than a "Negro male," stopped appellant and asked him his name and age. According to the officer, appellant appeared to be under sixteen years of age, he therefore ordered appellant into the patrol wagon for violation of the Philadelphia curfew law then in effect.*fn1 Appellant was transported to police headquarters, was questioned, and subsequently confessed.
Based on these facts, we fail to find probable cause for appellant's arrest. Probable cause for an arrest is defined
in Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974):
"The crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator." At page 428, 322 A.2d at page 123.
In the instant case, the issue of whether a crime had been committed is not relevant, since the officer knew that a gang killing had occurred; the crucial question is -- was the officer justified in his belief that appellant was the perpetrator? At appellant's suppression hearing, the arresting officer testified that he had no description of the alleged perpetrators of the homicide, other than "Negro males," and no description of wearing apparel. All he knew was that they were running south on Eleventh and Girard Streets. Appellant was arrested on Juniper Street, with a single companion, a block and a half from the homicide. Under these facts, we fail to find probable cause for appellant's arrest.
In Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). This court was presented with a situation similar to that of the instant case. In Berrios, the police had information that a shooting had occurred in a certain area of town and that two Negro males, in dark clothing, and a Puerto Rican, in light clothing, believed to be involved in the homicide, were observed leaving the scene of the homicide. About twenty minutes later the police observed a Negro in dark clothing and a Puerto Rican in light clothing walking about three blocks from the shooting. The police ...