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COMMONWEALTH v. HAWKINS (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
HAWKINS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, No. 1499, in case of Commonwealth of Pennsylvania v. Ernest Hawkins.

COUNSEL

Reggie B. Walton and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

John DiDonato, 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 Cercone, J. Concurring Opinion by Spaeth, J.

Author: Cercone

[ 240 Pa. Super. Page 58]

On July 7, 1973, at approximately 5:00 A.M., while sitting on the steps outside her house at 2012 Orianna Street, Roberta Coleman was approached by two men. One, David McDonald, asked her for a glass of cold water and the other, appellant, asked to use her bathroom. Although she did not know the men she nevertheless admitted them to her home. After returning from the bathroom appellant told Miss Coleman: "This is a stick-up," and proceeded to tie her up with an extension cord and place a jacket over her head. The men then removed $15 from Miss Coleman's person and took various other items from her home, i.e., her baby's bank, an electric clock, two watches, two televisions, a toaster, an electric can opener and a barbecue grill. They loaded the large items on Miss Coleman's child's wagon and left. After freeing herself, Miss Coleman called the police, who arrived within ten minutes. After the police arrived, a man who wished to remain anonymous informed both Miss Coleman and the police that he had seen two men with a baby's wagon full of household goods leave Miss Coleman's residence and go into a nearby house located at 2105 North Third Street. This information was radioed to other officers who, when Miss Coleman and the officers with her arrived at the Third Street house, were already in the process of removing appellant and co-defendant David McDonald from the house. Officer Bowie, who arrested appellant testified that he had received a radio message which told of the robbery, gave a description of the men and stated that the men had gone to a house located at 2105 North Third Street. Upon arriving at 2105 North Third Street, a Vivian McDonald, the occupant of the house and sister of co-defendant David McDonald, told Officer Bowie: "Get the thieves out of my cellar." He then went into the basement and

[ 240 Pa. Super. Page 59]

    observed appellant hiding behind some pieces of wood. Appellant was arrested and a search revealed that he had watches taken from Miss Coleman on his person. Other items taken from Miss Coleman were found thrown about the basement. Appellant was charged, indicted and convicted in a non-jury trial of robbery.*fn1 Post-verdict motions were argued and denied, and appellant was sentenced to a term of imprisonment of two and one-half to ten years. No appeal was taken; but, on September 11, 1974, appellant filed a Post Conviction Hearing Act*fn2 petition. A hearing was held on March 6, 1975, and relief was denied. This appeal followed.

In this appeal appellant contends that his trial counsel was ineffective; and, therefore he is entitled to a new trial. Before consideration of the merits of appellant's ineffective assistance of counsel claim we must first determine if such issue is properly before our court. In Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) our Supreme Court held that Dancer's failure to raise his ineffective assistance of counsel claim on direct appeal created "a rebuttable presumption that the failure was 'knowing and understanding' and that therefore the issue was waived." 460 Pa. at 100, 331 A.2d at 437. Dancer, however, was represented on his direct appeal by counsel other than his trial counsel and, therefore, had the opportunity to raise his trial counsel's ineffectiveness on direct appeal. In the instant case appellant decided not to take a direct appeal, on the advice of his trial counsel. As was stated in Dancer, supra at 100, 331 A.2d at 438, "it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness." Accordingly, now that appellant has different counsel, this is the first opportunity for him to raise his

[ 240 Pa. Super. Page 60]

    trial counsel's ineffectiveness. Therefore, he is permitted to do so at this time. Commonwealth v. Lewis, 463 Pa. 180, 182, 344 A.2d 483, 484 (1975).

First, appellant contends that his trial counsel acted incompetently in failing to file, prior to trial, a motion to suppress physical evidence confiscated from him when he was arrested. While it is true that pre-trial motions were not filed, the suppression of physical evidence issue was argued by trial counsel in an oral motion to suppress at the conclusion of the Commonwealth's case, when the Commonwealth moved for admission into evidence of the physical evidence in question. The trial judge, after consideration of the argument and the evidence which had already been introduced at the trial, denied the motion. No advantage would have been gained by arguing the motion prior to trial.

Appellant further claims, in relation to the suppression of physical evidence issue, that his trial counsel argued the oral motion to suppress in a "slipshod" manner. We need not address the manner in which trial counsel argued the motion, since the motion clearly lacked merit and could not have been properly sustained, regardless of how it may have been argued. The substance of appellant's argument is that he was arrested without probable cause and, accordingly, the subsequent search was improper. Appellant contends, citing Betrand Appeal, 451 Pa. 381, 386 (1973), that probable cause did not exist because a tip from an anonymous informer, standing alone, is insufficient to establish probable cause. We would accept appellant's contention if the facts established that the anonymous informant's tip was the only information on which the arrest was based; but, in the instant case there is more. After the victim had given the details of the robbery ...


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