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COMMONWEALTH v. WIGGINS (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
WIGGINS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, Nos. 511, 552, and 553, in case of Commonwealth of Pennsylvania v. Joseph Wiggins.

COUNSEL

John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.

Pamela P. Esposito, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Hoffman, J., concurs in the result. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Price

[ 239 Pa. Super. Page 258]

On the evening of October 5, 1973, appellant-defendant Joseph Wiggins broke into a young woman's apartment, raped her, and robbed her of several pieces of jewelry. On August 26, 1974, a jury found appellant guilty on charges of burglary, robbery, and rape. The errors alleged by appellant on appeal are without merit and we will, therefore, affirm the judgment of sentence of the lower court.

The appellant's written post-trial motions consisted solely of a form challenge to the sufficiency of the evidence. Any issue not specifically raised in written post-trial motions is deemed waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). However, in Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975), our supreme court held that the policy of requiring issues to be raised in written post-trial motions would apply only to those motions filed after the date of decision of Blair, supra. In this case, appellant's written post-trial motions were filed on September 3, 1974, before the date of decision of Blair, and, therefore, we will consider any issues raised in oral post-trial motions and entertained by the trial judge.

Appellant first contends that it was error for the lower court to admit into evidence an inculpatory statement given by him on November 21, 1973, to

[ 239 Pa. Super. Page 259]

Detective Williams of the Philadelphia Police Department. Appellant argues that the statement was the product of an illegal arrest.

Prior to November 21, 1973, Detective Fred Carbonara, also of the Philadelphia Police Department, had been investigating several rapes that had occurred in the Tasker Projects area. One of the victims was able to describe her assailant and thought his name was "Joey." Further investigation by Detective Carbonara in the Tasker Projects area led him to suspect that the perpetrator was Joey Wiggins. Detective Carbonara displayed a set of ten photographs to two of the victims, both of whom tentatively identified appellant's picture as that of their assailant. The victims stated that they thought that Wiggins was the perpetrator, although they could not be certain. On September 10, 1973, Carbonara obtained a warrant for appellant's arrest, telling the issuing magistrate that the victims had positively identified the appellant.

After the arrest, while Carbonara was questioning appellant about the alleged rapes in the Tasker Projects area, word was conveyed to Detective Williams that the suspect matched the description of the assailant in the crime that he was investigating, the crime for which appellant was ultimately convicted. Detective Williams questioned appellant and obtained the statement that was introduced at appellant's trial.

Appellant contends that because Detective Carbonara falsely told the issuing magistrate that appellant had been identified positively, the warrant was invalid, the arrest was invalid, and the statement was tainted. In Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970), the Supreme Court of Pennsylvania reversed a conviction where a search warrant had been procured on the basis of false information delivered to a magistrate. In that case, however, the court noted that the ...


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