No. 2171 October Term, 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 2087, 2088, and 2089 of December Term, 1975.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, Spaeth and Lipez, JJ. Cercone, President Judge, concurs in the result.
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Appellant was found guilty, by a judge sitting without a jury, of aggravated assault, robbery, burglary, and criminal conspiracy in connection with the burglary and robbery of a
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Mr. and Mrs. Martin Robinson. Following denial of post-trial motions, he was sentenced to three terms of two to five years imprisonment and one term of four to ten years imprisonment, all to run concurrently. On this appeal, appellant claims that he is entitled to a new trial for the reasons that certain inculpatory statements were improperly admitted because: (1) The Commonwealth failed to establish probable cause for his arrest, and therefore his statements, as the fruits of this illegal arrest should have been suppressed; and (2) his statements should have been suppressed as violative of Pa.Rule Crim.Pro. 130 since he was not arraigned until twenty-eight hours after his arrest and his initial inculpatory statement, given seven hours after his arrest was prejudicial and related to the delay.
The situation here is somewhat unusual. It arose out of the fact that appellant was arrested without a warrant by the police for an entirely unrelated offense, to-wit, the homicide of Albert Dixon, for which he was not ultimately charged. After his arrest and while in custody he gave police a statement implicating himself in the Robinson offenses. To sustain the arrest, the Commonwealth therefore was required to show that under the circumstances there was probable cause for the appellant's arrest for the Dixon homicide, and that their mistake was a reasonable one. Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971); Commonwealth v. Pinney, 236 Pa. Super. 309, 312-13, 344 A.2d 596 (1975).*fn1 We think the arrest for the Dixon homicide lacked probable cause and that the statements were the fruits of an illegal arrest.
The circumstances giving rise to the appellant's arrest, as disclosed at the suppression hearing, may be stated as follows: On August 11, 1975, Albert Dixon was found sitting in a car at 68th and Ogontz Avenues in Philadelphia with a wound in the side. At that time police investigators found a
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spent .25 calibre shell under the victim's car. Later Dixon died and then Detective Kane began an investigation of his death.*fn2 He interrogated some fifteen to eighteen juveniles from the 68th and Ogontz area at the Police Administration Building. As a result of the interrogation of these persons he obtained the name of Larry Cooper. On October 18, 1975, Kane spoke with Larry Cooper. Cooper told Kane that sometime after his return from "down south" on September 24, 1975, he overheard appellant Raymond Patterson say, "I had to bust the man in the ass when I was robbing him." When Cooper asked Patterson to name the man he had "busted", Patterson refused (S. H. p. 8). Cooper also overheard Patterson say, "[he] was going to do something with a gun," but heard nothing more. Cooper told Kane he saw the gun to which Patterson had referred; it was a "small black gun with a clip."*fn3 Kane then showed Cooper a photograph of Patterson which Cooper identified as the man he had overheard. (S. H. 8).
Kane concluded that he had probable cause to arrest the appellant for the shooting of Dixon based on the following facts and circumstances:
1. A .25 calibre shell was found near the car in which Dixon had been found shot. From this Kane inferred that Dixon had been shot with a .25 calibre gun and that the gun had been automatic since a revolver would not have ejected a shell. (S. H. p. 10). Cooper said he saw Patterson with a small gun with a clip ...