No. 281 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, at No. 290 October Term, 1974- Criminal
Margaret H. Poswistilo, Assistant Public Defender, Easton, for appellant.
Allan B. Goodman, Assistant District Attorney, Bethlehem, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Cercone, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 513]
Following a jury trial on November 19, 1975, appellant was convicted of robbery*fn1 and conspiracy.*fn2 Post-trial motions were denied, and a sentence of two to four years imprisonment plus payment of the costs of prosecution and of restitution was imposed. Eight issues are raised in the instant appeal.
[ 262 Pa. Super. Page 514]
In October of 1974, police in Easton, Pennsylvania, initiated surveillance of a third-floor apartment at 922 Washington Street in that community. The police had information linking Carl Brown, a prison escapee, to this residence, and they possessed warrants for Brown's arrest for armed robbery and prison breach. Late in the evening of October 17, and early on October 18, the eighth and ninth days of their observation, the officers saw a man and woman come to the apartment and join Henry Curtis James, the lessee, and his female companion. Two other males arrived separately within approximately the next two hours. When the last man to arrive, later identified as Brown, took off his coat, he was seen to be armed with a large hand-gun carried in a shoulder holster. The officers next saw two other men, later identified as appellant and Hugh Pace, changing clothes. Carl Brown took a brown paper bag from beneath the sink and tucked it into his belt. The trio then began to don their coats, apparently in preparation to leave the apartment. At this point, two members of the surveillance team attempted to reach the street in time to follow the three men, but were unable to do so. The officer who remained at the surveillance point saw the direction in which the men proceeded.
About ten minutes later, the three men came running back to the front porch at 922 Washington Street. Two of the men hurriedly attempted to unlock the front door, while the third looked up and down the street, saying, "Hurry up, hurry up, the cops are all over the place." At this point, the observing officer had his first clear view of the man's face and identified him as Carl Brown. Shortly after the three men re-entered the apartment, the officer radioed the chief of police that Brown had appeared. Immediately thereafter, the officer received a radio dispatch that an armed robbery had just occurred at Pete's Bar, approximately a block and a half from the scene. Before leaving his surveillance point, the officer saw Pace and appellant change their clothes, while Brown removed only his jacket and hat.
[ 262 Pa. Super. Page 515]
Based on the observations of the surveillance party and the information regarding the robbery, the police concluded that Brown and his companions were the robbers and proceeded to surround the apartment. Brown was subsequently shot and killed while attempting to flee. Pace and appellant were arrested in the hallway immediately outside the apartment. Upon entering the apartment, the police found numerous items of evidence in plain view: one wallet on a windowsill and another on the floor, a brown paper bag containing change lying on the floor, currency stuffed into a partially open drawer beneath the kitchen table, and numerous articles of clothing. This evidence was held admissible following a pre-trial suppression hearing, but that ruling was later overturned by the court en banc, which reversed appellant's first conviction and granted him a new trial.
The first point of error appellant asserts regarding his second trial is that all evidence stemming from the warrantless surveillance of the apartment at 922 Washington Street should have been suppressed. It is argued that police use of binoculars and a "startron" to conduct their surveillance from the third floor of a building forty to fifty feet from the subject premises constituted an unconstitutional search. The startron is a device which enables the observer to see into areas which would appear dark to the naked eye or through conventional binoculars. The location of the police surveillance team accorded them a view of the living room window and the kitchen window of the third-floor apartment. A portion of the bedroom could be seen through the living room window when the bedroom door was open. Neither window had curtains or shades.
It is contended that the third-floor location of the apartment gave the occupants a legitimate expectation of privacy as to activities occurring therein. Appellant relies upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as supporting his position that the surveillance in this case constituted a search. In Katz, government agents attached a listening and recording device to the outside of a public telephone booth to secure evidence of the suspect's
[ 262 Pa. Super. Page 516]
transmission of wagering information by phone. The United States Supreme Court there stated that "the Fourth Amendment protects people not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations omitted]. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, supra at 351-52, 88 S.Ct. at 511.
The Court further pointed out that prior case law indicating that no search could take place without physical trespass or the seizure of material objects, was no longer viable. In sum, the Court held that the government's actions violated the defendant's legitimate expectation of privacy and constituted a search which was in violation of constitutional requirements because no warrant had been obtained.
We must initially decide if the police surveillance in this case was a search under Katz. The decision in Commonwealth v. Hernley, 216 Pa. Super. 177, 263 A.2d 904 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971), is instructive on this question. In Hernley, an FBI agent received information which led him to suspect that football gambling forms were being printed in the appellant's printshop. One evening, the agent noticed that the presses in the shop were operating, but he was unable to observe any activity within the building because of the height of the windows. To solve this dilemma, the agent employed a four foot ladder which he placed on the railroad tracks abutting the appellant's property, thirty to thirty-five feet from a shop window. From this vantage point the agent, using binoculars, was able to see betting sheets being produced. Analyzing the appellant's fourth amendment claim, the Hernley court first noted that the use of binoculars to make visual observations was not unreasonable, citing Johnson v. State, 2 Md.App. 300, 234 A.2d 464 (1967), and Fullbright v. United States, 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830, 89 S.Ct. 97, 21 L.Ed.2d 101 (1968). Recognizing that Katz had eliminated the necessity that a physical trespass
[ 262 Pa. Super. Page 517]
occur in order for a surveillance to be unreasonable, the court turned to the two part standard expressed in Justice Harlan's concurring opinion in Katz : (1) that the subject had demonstrated an actual expectation of privacy, and (2) that society be able to view this expectation as reasonable. Applying this test to the facts, the court held as follows:
"Our case presents the situation in which it was incumbent on the suspect to preserve his privacy from visual observation. [Footnote omitted]. To do that the appellees had only to curtain the windows. Absent such obvious action we cannot find that their expectation of privacy was justifiable or reasonable. The law will not shield criminal activity from visual observation when the actor shows such little regard for his privacy." Commonwealth v. Hernley, supra, 216 Pa. Super. at 182, 263 A.2d at 907. See also Commonwealth v. Busfield, 242 Pa. Super. 194, 363 A.2d 1227 (1976).
We find that although there are significant factual differences in the cases, appellant's fourth amendment claim is controlled by the reasoning in Hernley. It is contended that the third-floor location of the apartment entitled the occupants to a greater expectation of freedom from observation. The surveillance in question, however, took place from a location on the third floor of a residence directly across from the apartment building. The susceptibility of the apartment to observation from this location was apparent. In Hernley, on the other hand, there was no obvious point from which observation could take place, necessitating the use of an outside instrumentality, the ladder, to make the surveillance possible. Considering all the factors advanced by appellant -- the location of the apartment, the duration of the surveillance, the use of binoculars and of the startron -- it remains irrefutably clear that just as in Hernley, the occupants of the apartment could have precluded all observation by the simple expedient of curtaining or otherwise covering the windows. Applying the standard of a balancing of interests between the security of public order by detection and prevention of crime and a person's immunity from police
[ 262 Pa. Super. Page 518]
interference into his privacy, Commonwealth v. Hernley, supra, we find that the surveillance in this case did not violate appellant's fourth amendment rights.
Appellant maintains that the use of a startron as a part of the surveillance herein violated the apartment occupants' reasonable expectation that their activities in unlit rooms at night would be private. For two reasons, we are not persuaded by this argument. First, the use of curtains or other window coverings would have rendered the startron, as well as more conventional techniques of observation, ineffective. Second, none of the evidence of which appellant complains was gained by use of the startron. The observation of the apartment on the night of the robbery took place through the use of binoculars and the naked eye. Thus, even were we convinced that use of the startron could not be sustained on these facts, we would not be compelled to suppress the evidence of which appellant complains. The fact that some evidence gained by surveillance prior to an arrest is unconstitutionally procured does not require the suppression of evidence resulting from observations not suffering from the same defect. See Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972).
Appellant's second claim is that the trial court erred in allowing him to be identified by witnesses at trial. It is asserted that the courtroom setting, with appellant and his attorney seated at the defense table, was so inherently prejudicial that appellant was deprived of due process of law. The cases cited by appellant, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), all pertain to pre-trial identification procedures. Appellant apparently would have this court require in-court lineups for identifications at trial. We can perceive no reason to effect such a sweeping change in the law of this Commonwealth. There are a number of reasons why a courtroom identification is not equivalent to a one-on-one station house confrontation or similar pre-trial
[ 262 Pa. Super. Page 519]
procedure. At trial, a witness is under oath and fully aware of the significance and solemnity of his action in identifying a defendant. Even more important is the fact that the witness is subject to cross-examination as to the certainty of his identification, the circumstances underlying his ability to recognize the defendant, his memory, his capacity for observation, and any other factors which might affect his reliability or the weight to be accorded his evidence. At trial, defense counsel conducted extensive cross-examination of this type. Appellant was neither unfairly prejudiced nor deprived of due process by the identifications at his trial. This claim is utterly devoid of merit.
As his third point, appellant alleges that his courtroom identification by witness Peter Shumar was tainted by a prior unconstitutionally obtained identification. Mr. Shumar, the owner of Pete's Bar, identified appellant through a one-way mirror at the police station within a few hours after the robbery. A lineup was subsequently held in a courtroom, at which time Mr. Shumar was unable to pick appellant from the group. At trial, Mr. Shumar positively identified appellant as the robber who stood by the door to his establishment during the crime. The police station identification in this case was of the type condemned in Stovall v. Denno, supra, and Commonwealth v. Mackey, 447 Pa. 32, 288 A.2d 778 (1972). The victim was confronted with a single suspect in a highly suggestive setting. No counsel for appellant was present at this proceeding, and the record reveals no exigent circumstances justifying the failure to conduct a formal lineup.
[ 262 Pa. Super. Page 520]
In United States v. Wade, supra, it was claimed that the trial court's ruling allowing an in-court identification by a witness who had previously identified the appellant at an uncounselled pre-trial lineup was error requiring reversal. The test applied by the Court was "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." United States Page 520} v. Wade, supra, 388 U.S. at 241, 87 S.Ct. at 1939, quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The following factors are set forth as relevant to this determination:
"[T]he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any prelineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. at 1940.
In the instant case, the wintess, Shumar, testified that he was standing in the rear of the thirty feet by sixteen feet barroom when the three robbers entered, that the lighting in the bar was good, that appellant stood by the door, that appellant's head and face were uncovered, and that the robbery lasted three to four minutes. The witness thus had a good opportunity to observe, during the criminal act, the person he identified as appellant. Mr. Shumar further stated that he was not asked for and did not give a particularized description of the robbers to the police who came to investigate following the incident. He related only that the bandits were three black males, one with a gun and a hat, and that all three were wearing jackets. There was no conflict between the information given to the police by Mr. Shumar and appellant's actual description. Mr. Shumar never identified anyone other than appellant as the member of the robbery trio who stood by the door.
On one occasion several weeks after the incident during a lineup conducted in a large courtroom, Shumar was unable to identify appellant as one of the participants in the robbery. The lineup consisted of seven to ten black males. Fifty to one hundred people viewed the proceeding from the spectator section of the courtroom. Mr. Shumar was seated about twenty rows back in the room. The lineup participants, however, were highly uncooperative. Each man was
[ 262 Pa. Super. Page 521]
to take a turn putting on a hat and repeating certain words, but some would not do so. The men refused to stay in line, and at different times individuals had to be restrained or removed. Mr. Shumar testified that the attempted lineup achieved no more than utter confusion, and that he felt that the chaotic nature of the proceeding may have resulted in his being unable to identify appellant on that occasion.
Under the above circumstances, we find that "the totality of the circumstances affecting the witness's identification did not involve a substantial likelihood of misidentification [citations omitted]," Commonwealth v. Fowler, 466 Pa. 198, 203, 352 A.2d 17, 19 (1976), and the trial court's decision to allow the in-court identification was not error. The witness was subjected to intensive cross-examination as to the details of appearance and dress of appellant and his two confederates. Any weaknesses in Mr. Shumar's powers of observation and recall were certainly exposed to the jury. Considering the positive and unshaken nature of the witness's identification, the opportunity and conditions for observation at the time of the crime, and the witness's reasonable explanation of his one previous failure to identify appellant, there was a sufficient basis to find that Mr. Shumar's ability to identify appellant was independent of the improper, suppressed confrontation.
As his fourth issue, appellant asserts that he was arrested without probable cause, and thus all evidence gained directly or indirectly through his arrest should have been suppressed. Appellant argues that the police must have relied on the radio dispatch regarding the robbery of Pete's Bar in reaching their determination of probable cause to arrest the occupants of the apartment. Appellant recognizes that hearsay information as transmitted in a radio broadcast may be considered in testing probable cause. It is asserted, however, on the authority of Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and Commonwealth v. Cruse, 236 Pa. Super. 85, 344 A.2d 532 (1975), that because the Commonwealth failed to produce the radio dispatcher to testify concerning the source of his
[ 262 Pa. Super. Page 522]
knowledge, the information contained in the broadcast cannot be considered in determining probable cause and the arrest must fail.
"It is well established that a police officer is authorized to arrest without a warrant when he has probable cause to believe that a felony has been committed and that the person to be arrested is the felon. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973); Commonwealth v. Vassiljev, 218 Pa. Super. 215, 275 A.2d 852 (1971). Probable cause to justify a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent man in believing that an offense had been committed, and the suspect was the perpetrator of that offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Commonwealth v. DeFleminque, 450 Pa. 163, 299 A.2d 246 (1973); Commonwealth v. Brown, 230 Pa. Super. 214, 326 A.2d 906 (1974)." Commonwealth v. Jones, 233 Pa. Super. 461, 464, 335 A.2d 789, 790-91 (1975).
The authority cited by appellant does not require that we find a lack of probable cause to support the warrantless arrest in this case. Both Whiteley and Cruse were cases in which the arrest of suspects was based solely on information received over police radio broadcasts. In the instant case, Detective Beers, one of the officers conducting the surveillance of the apartment, saw three men enter and change clothes. One of the men carried a large pistol in a shoulder holster. Officers saw the men leave the apartment and were able to note the direction in which they proceeded. The trio ran back to the apartment within ten minutes. The men hurriedly attempted to gain entrance to the apartment building. The man carrying the gun urged the others to, "Hurry up. The cops are all over the place." At this time, Detective Beers recognized the speaker as Carl Brown, the object of the surveillance and the man for whom the police had arrest warrants on robbery and escape charges. The
[ 262 Pa. Super. Page 523]
officer radioed for help to effect the capture of Brown. Turning to the alternate police channel, he received a broadcast regarding the robbery of Pete's Bar. The broadcast related the time of the incident, that the robbers were three black males and that one was wearing a black hat, a brown coat and carrying a large pistol. Detective Beers knew that Pete's Bar was only a block and a half from the apartment, in the direction the three men had taken when they left and from which they returned. With this knowledge, Detective Beers made another radio call stating that he believed the apartment harbored not only Carl Brown, but the perpetrators of the just-completed robbery. Detective Beers' conclusion that probable cause existed to arrest the three men in the apartment was strongly supported by his personal observations. What the officer knew about the appearance and actions of the men immediately preceding and immediately following the time of the robbery matched the information the police radio conveyed. A finding of probable cause was thus not based solely on the hearsay broadcast, but on that information as buttressed and substantiated by the officer's personal knowledge. See Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Hines, 230 Pa. Super. 290, 326 A.2d 485 (1974). This combination was clearly sufficient to support a reasonable belief that appellant and his cohorts were the robbers of Pete's Bar.
It is also important to note that the disposition of this issue is not altered by the fact that Detective Beers was not inside the apartment when appellant and Hugh Pace were arrested. The detective had radioed his belief that the robbers were inside the apartment to the officers, who soon thereafter made the arrests. The arresting officers were certainly entitled to rely on this radio bulletin. Moreover, Officer Beers appeared at trial, testified and was available for cross-examination as to the facts and circumstances on which his conclusion was based.
Appellant's fifth claim is that two exhibits were improperly admitted into evidence at his trial. The first of these was the gun ...