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decided: November 22, 1976.


Appeal from Judgment of Sentence Entered May 2, 1975, by the Court of Common Pleas of Bucks County, Criminal Division at No. 1170 of 1971. No. 1337 October Term, 1975.


Eugene A. Kestenbaum, Assistant Public Defender, Doylestown, for appellant.

Stephen B. Harris, First Assistant District Attorney, Doylestown, for appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Watkins

[ 245 Pa. Super. Page 416]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County, Criminal Division, by the defendant-appellant, Forrest Wilson, after

[ 245 Pa. Super. Page 417]

    conviction in a jury trial of attempted robbery, attempted larceny, assault and battery and two counts of conspiracy; and from the denial of post-trial motions.

The defendant was first brought to trial on October 11, 1973, before the Honorable Arthur B. Walsh, Jr. and a jury. A mistrial was declared on the motion of defense counsel when it was discovered during the trial that one of the jurors had a hearing problem.

On October 31, 1973, the defendant was again brought to trial before the Honorable Robert M. Mountenay and a jury. Again, on motion of defense counsel, a mistrial was declared as a result of prejudicial statements made in front of the jury by a prosecution witness.

On November 20, 1973, the defendant was again brought to trial before a jury, with the Honorable Lawrence A. Monroe presiding. The jury retired for deliberations at 4:00 P.M. on November 21, 1973. At 7:00 P.M. the jury reported to the court that they were hopelessly divided and could not reach a verdict and the court then declared a mistrial over the objection of the defendant. On January 14, 1974, the appellant's application to quash the indictment on the ground of double jeopardy was denied by Judge Monroe.

On January 14 and 15, 1974, the appellant was tried before the Honorable Edmund V. Ludwig and a jury and was found guilty. Post-trial motions were denied and this appeal followed.

The appellant had moved to suppress evidence as to a statement made by him subsequent to his arrest and the search made pursuant to the arrest. He also complained of the examination at the hospital and alleged that the warrant secured by the arresting officer was not based upon probable cause.

The laws of Pennsylvania have defined probable cause as facts or circumstances, within the knowledge of the arresting officer at the time of arrest, which are sufficient

[ 245 Pa. Super. Page 418]

    to warrant a reasonable man to believe that the suspect has committed a crime. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). In this case then, we must deal with the problem of whether an informative tip can satisfy the requirement of probable cause to issue an arrest warrant. The Supreme Court of the United States has recognized that informants' tips are but hearsay. Nevertheless, they may constitute probable cause when two standards are met:

(1) There must be underlying circumstances which enable the issuing magistrate to judge the validity of the informant's claim.

(2) The officer seeking the warrant must present facts from which the magistrate can infer the tip is a reliable one.

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1974); Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584 21 L.Ed.2d 637 (1967); Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976).

Appellant contends there was no showing of reliability. However, the informant described the circumstances surrounding the robbery which is an indication of reliability. As it was pointed out in Spinelli, supra, 393 U.S. at page 416, 89 S.Ct. at page 589, 21 L.Ed.2d at page 644:

"In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip described the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation."

The standard for probable cause to arrest was satisfied by the informant's tip.

[ 245 Pa. Super. Page 419]

As the Honorable Arthur B. Walsh, Jr. stated in his opinion:

"In reaching his decision not to suppress the evidence, the hearing judge recognized that the information stated by the officer to the magistrate failed to include specifically how the informer linked defendant's name with the robbery. It was felt, however, that the circumstances surrounding the reported assault were in themselves sufficient to negate the possibility that the 'tip' was merely an unsupported rumor or fabrication. First and foremost was the victim's statement that he had shot two assailants. Secondly, at the time the officer received the tip he had firsthand confirmation that at least one man was wounded and in custody. Thirdly, the street address given in the tip was in the neighborhood of the assault. Fourthly, the very nature of the tip that the alleged assailant was at that moment lying wounded on his couch was such as to belie fabrication. These circumstances together with the other information given to the magistrate sufficiently protected the defendant from invasion of the constitutional guaranty against unreasonable searches and seizures."

We find the search warrant valid and the denial of suppression by the court below proper.

Over the objection of the defendant, Dr. William Chamberlain, the Director of Surgery of Lower Bucks County Hospital, testified that he examined the defendant, Forrest Wilson, on March 28, 1971. This witness testified that upon examination he noted a "puncture-type wound" in the chest and shoulder area of the defendant and that based upon his observations of the wound and his consultation with and examination of certain X-Rays of the patient, he concluded that the wound was caused by a "projectile". This evidence was offered for the purpose of corroborating the testimony of the victim,

[ 245 Pa. Super. Page 420]

Mr. Sloan, who testified that upon arrest he noted a wound in the shoulder area of the defendant.

The defense contends that the evidence was inadmissible because it was "prejudicial" and that its inherent prejudice outweighed its value as admissible evidence. The defense contends in part, that the Commonwealth's failure to produce "qualified witnesses" to substantiate that the X-Rays relied upon were in fact those of the defendant was error.

In resisting this claim, the Commonwealth relied on Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), in which the Supreme Court clearly indicated that a medical expert may express his opinion, even though the opinion is based in part upon the reports of other persons which are not in evidence. In concluding that such an opinion is admissible as an exception to the hearsay rule, the court concluded that the opinion was based upon the reports of others to which the expert witness customarily relies in the practice of his profession.

Appellant further contends that the declaration of a mistrial by the court below after the conclusion of the November 20, 1973 trial was improper as having been ended without the requisite manifest necessity and barred ...

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