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COMMONWEALTH PENNSYLVANIA v. DONALD IRVING (07/05/79)

decided: July 5, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DONALD IRVING, APPELLANT



Nos. 228 and 234 January Term 1977, Appeals from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia at Nos. 46, 47 and 48 February Term 1976

COUNSEL

Lawrence S. Rosenwald, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Neil Kitrosser, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case.

Author: Eagen

[ 485 Pa. Page 599]

OPINION OF THE COURT

Appellant, Donald Irving, was convicted of murder of the third degree, conspiracy and possessing instruments of crime in a non-jury trial in the Court of Common Pleas of Philadelphia. The charges against Irving arose from the shooting death of Hattie Jones inside her residence on February 13, 1975. In this appeal, Irving challenges the sufficiency of the evidence to sustain the finding of guilt of murder and the evidentiary use of an incriminating statement he gave to the police following his arrest.

Irving maintains his statement should have been suppressed since it was tainted by his illegal arrest made pursuant to a defective state warrant. The Commonwealth's evidence established the following facts pertinent to this claim: Donald Irving and Roy Holloway went to the residence of Hattie Jones on February 12, 1975 to purchase marijuana. They were met at the door and admitted by a roomer, Judson Washington. Washington also let Irving and Holloway out of the house on that date. The next day, February 13, 1976, the same two men returned to collect money Holloway claimed Hattie Jones owed him, and they were again admitted by Washington. They followed Washington up the stairs and entered the room of Hattie Jones. Washington returned to his own room next door. About a half hour later, Washington heard scuffling noises in Jones' room and heard one of the men say: "Where is it at?" Washington went to Jones' room to investigate. He was met at the door by Irving who held a pistol. Irving told Washington not to get involved and, while Irving held Washington at bay with his gun drawn, Irving and Washington retreated to Washington's room. More scuffling sounds came from Jones' room and were followed by two shots. Irving and Holloway ran from the house while Washington went to Jones' room and discovered she had been shot. Washington called the police. He was questioned at the scene and gave descriptions of the assailants. He later identified Irving as one of two perpetrators of the crime from an array of eleven photographs.

[ 485 Pa. Page 600]

Based on this information, Detective Robert Kane sought a warrant for Irving's arrest. He presented an affidavit containing the following information:

"I accuse Donald Irving, 869 N. 26th Street, on or about Thursday, February 13, 1975, at approximately 4:40 P.M., in company with Roy L. Holloway, not in custody, did shoot and kill Hattie Jones, twenty-three, Negro female, inside residence, 3129 W. French Street."

An arrest warrant was issued based on this information alone. When Detective Kane learned Irving had fled the Commonwealth, he requested a federal fugitive warrant pursuant to 18 U.S.C. ยง 1073 and the assistance of the Federal Bureau of Investigation [F.B.I.].

Approximately nine months later, on November 24, 1975, Irving was arrested in New York City by New York Transit Authority police for an unrelated crime (jostling or pick-pocketing), and, in light of the outstanding fugitive warrant, he was transferred to the custody of F.B.I. agents to whom he gave an exculpatory statement. The Philadelphia police were contacted and, on December 5, 1975, Irving waived ...


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