No. 1083 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division of Philadelphia County, Nos. 591, 594, and 595, January Session, 1974.
Roger J. Harrington, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P. J., and Hester and Hoffman, JJ. Cercone, President Judge, concurs in the result.
[ 266 Pa. Super. Page 192]
Following a non-jury trial, appellant was found guilty of simple assault, possession of an instrument of crime, and carrying a firearm. Subsequently, a sentence of 2-5 years was imposed. A direct appeal was filed but never perfected.
Thereafter, appellant filed a Post Conviction Hearing Act (P.C.H.A.) petition which was denied by the court. However, that court granted appellant leave to file a direct appeal to this Court nunc pro tunc. Upon review, we remanded to the lower court and granted appellant leave to file post verdict motions nunc pro tunc Commonwealth v. Hart, 245 Pa. Super. 601, 372 A.2d 422 (1977).
Appellant filed the motions alleging, inter alia, that trial counsel was ineffective in that he failed to file motions to suppress the physical evidence against appellant and that he failed to file motions to suppress appellant's statement to the police. Following a hearing, the court denied the motions and in support thereof made the following findings of fact:
[ 266 Pa. Super. Page 193]
"In December 20, 1973, at about 3:00 p. m., Officers McElvain and Knowles received a flash radio bulletin: man with shotgun at 2026 West Master Street; the bulletin further described the man as "black", wearing a green army jacket and having the name of Hart. Because the physical description was the same as that of one Nathaniel Hart, whom the officers knew was wanted for robbery, the officers returned to the police station and procured a photograph of Mr. Hart before proceeding to 2026 W. Master Street. At 2026 W. Master Street, they met Margie Miller, who informed them that Willie Hart, black, 5'8" tall, wearing a green army jacket and a knit cap, with a shot gun in a brown paper shopping bag, had just left her house and was headed West on Master Street toward 21st Street. At or near 21st and Jefferson, just about a block and a half from Ms. Miller's house, the officers saw such a man holding the brown paper shopping bag, walking at a rapid pace. Officer Knowles noticed the barrel of the shotgun protruding from the bag. They ordered him to stop, asked him his name, and told him to place the brown paper bag he was carrying on the ground. The defendant stopped, gave his name as Willie Hart and deposited the brown paper shopping bag on the sidewalk. At this time, both officers could clearly see the barrel of the shotgun protruding out of the bag. From the paper bag, the police retrieved not only the shotgun but two knives -- one a Bowie knife in a sheath and the other a paring knife. From his person, the police took forty rounds of shells and a letter bearing the name of Margie Miller (the complainant-informant) on the envelope.
Both Ms. Miller and the defendant were interviewed at North Central Detective Headquarters. As a result of information provided by Ms. Miller, the defendant was charged with rape and indecent assault in addition to the weapons charges.
Before interrogating the defendant, Detective McCarty informed him that he was being questioned concerning the crime of rape. ...