No. 371 October Term, 1978, Appeal from Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section as of May Sessions 1971, Nos. 1975-1979 and August Sessions, 1971, Nos. 265-266.
Irvin J. Kopf, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, Spaeth and Lipez, JJ. Lipez, J., concurs in the result.
[ 270 Pa. Super. Page 403]
This is an appeal by Edward Farrington from the order of the court below denying post conviction relief.*fn* On October 29, 1971, appellant entered guilty pleas to the charges of aggravated robbery and burglary of a doctor and a patient in his office, of a jewelry store, and of an oil company. He was sentenced to eight to twenty years imprisonment to be served concurrently on all charges except for one prior aggravated assault conviction for which defendant was sentenced to five years probation to be served consecutive to the other sentences. A direct appeal was never filed by appellant.
In his post conviction petition, appellant contended that his guilty plea was the result of an allegedly constitutionally invalid arrest and line-up and also was primarily motivated by constitutionally invalid oral and written admissions and confessions after his arrest. After hearing, the court dismissed the petition. We affirm the judgment of the lower court.
A collateral attack on a guilty plea requires (1) an involuntary pre-trial confession or other constitutionally infirm evidence; (2) that the guilty plea was primarily motivated by such evidence; and (3) that defendant was incompetently advised by counsel to plead guilty rather than go to trial. Commonwealth v. Taylor, 449 Pa. 345, 296 A.2d 823 (1972); Commonwealth v. Holloway, 215 Pa. Super. 136, 257 A.2d 308 (1969). The contention, therefore, that the primary motivation for the entry of the plea was a constitutionally infirm arrest, line-up, and confession, if true, affords a basis for invalidating the guilty pleas.
The basis for an adverse ruling on the arrest aspect of the hearing is that Pennsylvania law authorizes a police officer to arrest without a warrant where he has probable cause to believe that a felony has been committed and that the
[ 270 Pa. Super. Page 404]
person to be arrested is the felon. Commonwealth v. Donnelly, 336 A.2d 632, 233 Pa. Super. 396 (1975).
We feel in the instant case that the police had probable cause to arrest appellant when the alleged victim of the crime saw Farrington leaving a taproom, and told a police officer on the street that Farrington had robbed him at gunpoint and went with the police to identify Farrington before the arrest. There are several Pennsylvania cases which permitted a warrantless arrest for a felony based on the victim's identification of the assailant to the police. Tentative identifications are sufficient to sustain conviction. Furthermore it has never been the law of the Commonwealth that a victim's statements must be corroborated before an arrest can be made. Commonwealth v. Wiggins, 361 A.2d 750, 239 Pa. Super. 256 (1976); United States ex rel. Young v. Rundle, 308 F.Supp. 1477 (D.C.1969); Commonwealth v. Bendas, 38 Northumb.L.J. 88 (Pa.Quar.Sess.1965).
The basis for our adverse ruling on the confession and inability to know he had a right to counsel before making the confession because he was too intoxicated is that drinking does not automatically invalidate his subsequent incriminating statement; the test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972). Appellant's past therapy for alcoholism and the fact that appellant had been drinking alcoholic beverages for about six hours do not alone make his confession ...