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COMMONWEALTH PENNSYLVANIA v. CLEVELAND POWERS (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
CLEVELAND POWERS, APPELLANT



No. 99 and 208, January Term, 1977 Appeal from the Judgments of Sentence entered in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at January Session, 1976, Nos. 1168-1171.

COUNSEL

Barry L. Adelman, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Darryl A. Irwin, James Garrett, Asst. Dist. Attys., Philadelphia, for appellee.

Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Nix, J., filed a concurring opinion. Eagen, C. J., concurs in the result. Roberts, J., filed a dissenting opinion.

Author: Larsen

[ 484 Pa. Page 201]

OPINION

Appellant was tried by a jury in the Court of Common Pleas of Philadelphia County and convicted of murder of the third degree, aggravated assault and battery, and various weapons offenses. This appeal followed.

Appellant's first contention is that his warrantless arrest was illegal and that, therefore, his confession should have been suppressed as the fruit of an illegal arrest. Whether the arrest was constitutionally valid depends upon whether, at the time the arrest was made, the arresting officers had probable cause to make the arrest. Commonwealth v. Pinney, 474 Pa. 210, 213, 378 A.2d 293, 295 (1977). Probable cause to arrest existed if "at the time appellant was detained by the police, the facts and circumstances within the officer's knowledge, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the appellant has committed or was committing an offense." Id. citing, inter alia, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The Commonwealth bears the burden of establishing, with reasonable certainty, facts sufficient to establish that probable cause for the arrest existed. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119, 123 (1974).

The existence or non-existence of probable cause can only be decided in the concrete factual context of each case. See, Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). "While this Court does not sit to appraise contradictory factual questions, it is this Court's duty to make an independent examination of probable cause, apart from any conclusions drawn by a trial judge or other appellate court, to ensure that the constitutional criteria established to safeguard Fourth Amendment rights have been respected. See, Ker v. California, 374 U.S. 23, 24, 83

[ 484 Pa. Page 202]

S.Ct. 1623, 10 L.Ed.2d 726 (1963)." Commonwealth v. Pinney, supra, 474 Pa. at 214, 378 A.2d at 295. In determining whether the suppression court erred in ruling appellant's confession admissible, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the whole suppression hearing record, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976).

Applying these standards to the instant case, we conclude that the denial of appellant's suppression motion was proper. The circumstances surrounding the arrest are as follows. On December 9, 1975, shortly before 8 p. m., Policeman Martin Dietz was summoned to the 3100 block of Berks Street in Philadelphia where he found Harold Berry, the deceased, bleeding on the sidewalk. Several people present at the scene informed Dietz that there had been a stabbing and they gave the assailants' descriptions to Dietz. At approximately 7:57 p. m., Dietz issued a "flash" police radio broadcast regarding the suspects. This broadcast stated that four or five negro males were involved, including one in a green army fatigue jacket with the hood pulled up, one in a white tee-shirt, and one six foot four inches tall in a brown overcoat and red knit cap. Other officers recalled that radio flashes had described more than one assailant as wearing green army jackets. A subsequent flash stated the suspects were from the "24th and Berks Street" gang. Upon receiving this latter information, Officer Joel Goodwin and Policeman Robert Dunsmore drove directly to the area of the intersection of 24th and Berks Streets. There, some time between 8 p. m. and 8:09 p. m., they discovered three young black men walking on Judson Street (just east of ...


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