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COMMONWEALTH PENNSYLVANIA v. ANTHONY WAYNE HARPER (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY WAYNE HARPER, APPELLANT



Appeal from the Judgment of Sentence imposed August 13, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 46 January Term, 1975.

COUNSEL

Albert J. Cepparullo, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result.

Author: Price

[ 248 Pa. Super. Page 346]

If Larry Jackson had foreseen the ordeal that awaited him, it is safe to assume that he would not have ventured forth into the night of October 14, 1974. At 11:30 p. m. on that night, Mr. Jackson boarded a west-bound trolley at Thirty-seventh Street and Lancaster Avenue in Philadelphia. He assumed a seat in the relatively empty rear of the vehicle. At Forty-second Street, three black males boarded the trolley and took the seats immediately in front of and beside Mr. Jackson. While en route, one of the men, later identified as Henry Wyatt, turned to Mr. Jackson and asked his destination. Mr. Jackson replied that he would deboard at Fifty-second Street. When asked his destination by Mr. Jackson, Henry Wyatt replied, "That's cool." Mr. Jackson had never seen any of the three men before.

Just before the trolley reached Fifty-second Street, two of the men began an unprovoked and savage knife attack on Mr. Jackson, stabbing him eleven times in the chest, arms, hands, and leg. As a result of this attack, emergency surgery lasting five hours was necessary to save Mr. Jackson's life. He lost five pints of blood and sustained severe nerve damage to his hands and arms. Mr. Jackson was able to leave the hospital after seven weeks.

When the trolley reached Fifty-second Street, the three culprits fled. The other passengers also ran from the trolley, and their screams attracted the attention of Philadelphia Police Officer Frederick Hoesle, who quickly summoned backup and emergency vehicles. Officer Hoesle learned from the passengers that the three men had boarded a bus

[ 248 Pa. Super. Page 347]

    across the street. When reinforcements arrived, Officer Hoesle boarded the bus and discovered six black men between the ages of eighteen and twenty-five. These men, along with one from the street, were taken to the hospital, and less than one hour after the attack had occurred, were paraded individually before Mr. Jackson. Mr. Jackson identified appellant and Henry Wyatt as two of the attackers.*fn1

Appellant contends that the hospital identification should have been suppressed because it was unduly suggestive. However, there is no evidence of undue suggestiveness in this case. The severity of Jackson's wounds and the amount of blood he had lost convinced the police officers that an immediate identification was necessary. Certainly, it was reasonable of the police to obtain the identification before Mr. Jackson was rushed to surgery. Furthermore, appellant was given the advantage of an impromptu line-up. Thus, the procedure in this case cannot be characterized as a one-on-one confrontation occurring after "the eyewitness knows of a prior police judgment that the confronted citizen is the person who committed the crime." Commonwealth v. Hall, 456 Pa. 243, 250, 317 A.2d 891, 894 (1974).

Appellant also contends that the identification was inadmissible because it was the fruit of an illegal arrest. However, no illegal arrest occurred in this case. Officer Hoesle had probable cause to believe that the perpetrators of a vicious attack were on the bus. Therefore, he was justified in momentarily detaining all persons who reasonably fitted the description of the attackers until an identification could be made. Commonwealth v. Hall, supra; Commonwealth v. Ray, 455 Pa. 43, 315 A.2d 634 (1974). Once the victim identified appellant, probable cause for the arrest existed.

Further comment is demanded by the unusual facts of this case. The lawfulness of the identification and the arrest procedure in this ...


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