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COMMONWEALTH PENNSYLVANIA v. RALPH THOMAS WALKER (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
RALPH THOMAS WALKER, APPELLANT



COUNSEL

Francis C. Sichko, Washington, Court-appointed, for appellant.

Jess D. Costa, Dist. Atty., Fred J. Sentner, Asst. Dist. Atty., Washington, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Cercone

[ 243 Pa. Super. Page 391]

Appellant, Ralph Thomas Walker, is one of five defendants involved in the robberies of four stores in or near the City of Washington, Pennsylvania, over a four-day period as follows: the Pic-Way Shoe Mart, January 10, 1975; Thorofare Market, January 13, 1975; Qwik'n Ezy Market, January 13, 1975; and the Gaydos PX Market, January 14, 1975. According to the testimony adduced at trial, appellant's involvement consists of entering the named stores with one of the other defendants and robbing the victims at gunpoint with appellant handling the gun.

On January 16, 1975, the police arrested one Donald Johnson as one of the participants in one of the robberies. After Johnson was arraigned and released on bond, he returned to the Pennsylvania State Police Barracks and made a voluntary signed statement of admission which also implicated appellant, Ralph Thomas Walker. That same evening appellant was arrested without a warrant at the home of his step-father. Subsequently, appellant was arraigned before a magistrate, held for court in the Washington County Jail, and was indicted by the Grand Jury on March 5, 1975. At his trial which commenced on June 23, 1975 and ended on June 25, 1975, the jury found appellant guilty on all four counts of robbery. After post-trial motions were filed and denied, appellant was subsequently sentenced to not less than four years nor more than ten years for each count of robbery with said sentences running consecutively, so that the aggregate term was not less than sixteen years and not more than forty years.

On direct appeal from judgment of sentence appellant raises three issues, none of which merit reversal. First, appellant contends that the verdict was against the weight of the evidence. He bases this argument

[ 243 Pa. Super. Page 392]

    on an alibi defense he presented at trial. His alibi witness, Miss Lagarah Hue, gave testimony that she and appellant did not arrive in the Pittsburgh area until Monday, January 13, 1975, and did not arrive in Washington, Pennsylvania, until after midnight of that date. Two Continental Trailways bus tickets were entered into evidence dated January 13, 1975 from Buffalo, New York, to Pittsburgh, Pennsylvania. On the strength of this evidence, appellant argues that it was "clearly" shown that he was not present at three of the robberies and that the evidence only places him in Washington, Pennsylvania, on January 14, 1975, the day of only one of the robberies. Appellant further complains that the Commonwealth did not produce evidence to rebut either his alibi witness or the evidence of the two bus tickets. Appellant's arguments have no merit as the Commonwealth is not required to rebut every specific piece of evidence introduced under an alibi defense. However, the Commonwealth did produce the victims of three of the four robberies who identified appellant as the person who had robbed them at gunpoint. The Commonwealth also produced an accomplice, Leslie Collins, who testified that appellant in fact participated in all four of the robberies. The jury was not required to believe appellant's alibi witness, nor the supporting evidence of the two bus tickets. The jury can believe all, some or none of the testimony of any witness, Commonwealth v. Reid, 448 Pa. 288, 292, 292 A.2d 297 (1972); Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970). The burden of the Commonwealth is to present evidence that the defendant was present at the scene of the crimes charged. This it did with sufficiency to prove appellant's presence beyond a reasonable doubt. The fact that the jury chose to believe the Commonwealth's evidence and disbelieve appellant's alibi defense is certainly not grounds for reversal. See Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959).

[ 243 Pa. Super. Page 393]

Secondly, appellant contends that his arrest was illegal in that no arrest warrant was produced, nor was there probable cause*fn1 to make an arrest without a warrant.

Assuming for the purpose of discussion only that appellant's arrest was illegal because no warrant was produced, appellant's objection, entered for the first time at trial, comes too late to require relief. Furthermore, since it is not contended that any evidence was gathered as a result of the arrest, it is not at all clear what relief appellant seeks. In any event, in Commonwealth v. Bruno, 203 Pa. Super. 541, 549, 201 A.2d 434, 437 (1964), this court decided the effect of an illegal arrest under these circumstances as follows:

"Even though a defective information is subject to review on a question of jurisdiction of the case or subject matter if brought in timely fashion, an indictment found regularly upon examination of witnesses will operate to correct any jurisdictional, as well as procedural, defects and irregularities in the information, warrant and proceedings before a magistrate. Commonwealth v. Brennan, 193 Pa. 567, 44 A. 498 (1899). Furthermore, it is well settled that the defects and irregularities in the information, warrant and proceedings aforesaid are waived by pleading to the indictment and ...


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