No. 1336 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 54-55, July Session, 1976.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Eric B. Henson, Assitant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 296]
The instant appeal arises from appellant's conviction, following a trial without jury, of robbery and possession of an instrument of crime. The four issues which appellant raises on appeal all turn on one pivotal question of law: Did the facts which the Commonwealth proved at the suppression hearing establish probable cause to arrest appellant? If the Commonwealth had probable cause to arrest, then the court properly admitted into evidence the fruits and instrumentality of the robbery, the victim's identification of appellant following his arrest, and appellant's confession.*fn1 The facts are as follows.
Shortly after noon on June 9, 1976, a lone gunman robbed the bartender at Annie's Bar near 11th and Dauphin Streets in Philadelphia. The man fled on foot with approximately fifty-five dollars in cash. The police were immediately notified, and at 12:20 P.M. the following description of the robber, as well as the time and place of the robbery, was broadcast: "A Negro male, 19 to 20 years old, five feet eleven inches tall, wearing a blue and white shirt." Plainclothes Officer Marvin Rafkin and his partner were in the vicinity of the crime and began cruising in their unmarked patrol car looking for someone who fit the description. Within a few minutes, Officer Rafkin and his partner heard a second broadcast stating that the suspect had entered a residence at 1131 Colonna Street, an address within a few blocks from the scene of the crime. Moments later Officer Rafkin was on the doorstep of the residence and saw a young man, who fit the description of the robber, standing inside the doorway clad only in underwear. When Officer Rafkin announced that he was a police officer the man
[ 258 Pa. Super. Page 297]
turned and fled up the steps to the second floor. Officer Rafkin, aided by other policemen who had heard the broadcasts, pursued him to the second floor where they apprehended him and placed him under arrest. The man proved to be appellant, Norman Legg.*fn2 When appellant was ordered to get dressed, one of the policemen accompanied him to the closet and observed the butt of a partially concealed revolver lying in a box on the closet floor. In addition, fifty-seven dollars in cash was found in the pocket of a shirt hanging in the closet. After appellant was taken to the police station and given Miranda warnings, he waived his right to counsel and consented in writing to a one-on-one confrontation with the bartender.*fn3 The bartender, who previously had failed to identify several other persons as the robber, positively identified appellant as the culprit. Thereafter, appellant confessed to the crime and admitted that he was apprehended while attempting to change his clothes to avoid identification.
The crux of appellant's argument is that the police lacked probable cause to arrest him because they failed to establish the source of the information which placed the robber at 1131 Colonna Street. That being the case, appellant argues that the Commonwealth could not rely upon this tip to establish probable cause, because neither the underlying circumstances upon which it was based, nor the reliability of the informant were shown. See Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973). In support of his position appellant cites numerous cases where uncorroborated police radio broadcasts or anonymous tips have been found constitutionally wanting and evidence has been suppressed. See, e. g., Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Commonwealth v. Brooks, 468 Pa. 547, 364 A.2d 652 (1976); Commonwealth v. Strohl, 458 Pa. 64, 326 A.2d 314 (1974); Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d
[ 258 Pa. Super. Page 298237]
(1974); Commonwealth v. Cruse, 236 Pa. Super. 85, 344 A.2d 532 (1975). The difficulty with appellant's argument is that the cases upon which he relies are readily distinguishable from the instant case; in none of those cases was the information upon which the arrest was based supported by additional facts which demonstrated its reliability. Indeed, in Whiteley v. Warden, supra, Mr. Justice Harlan, in speaking for the majority, stated:
"This Court has held that where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be ...