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filed: November 16, 1979.


No. 205 Special Transfer Docket, Appeal from the Judgment of Sentence on December 19, 1977, by the Honorable John M. Wajert of the Court of Common Pleas, Chester County, Pennsylvania. (No. 1243-1976)


Carol E. Haltrecht, Assistant Public Defender, West Chester, for appellant.

John E. White, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wieand

[ 271 Pa. Super. Page 531]

Willis Jones was convicted of third degree murder in connection with the shooting death of Woodrow Bare, Sr. Post trial motions were dismissed, and Jones was sentenced to prison for not less than three nor more than seven years. He appeals from the judgment of sentence. We reverse and remand for a new trial.

Woodrow Bare, Sr., was shot at or about 1:30 o'clock, A.M. on August 21, 1976. By 2:10 o'clock, A.M., on the same morning, appellant and several others were in custody. Appellant had been drinking earlier that night and had accosted the decedent's son and brother. When decedent heard about the altercation, he pursued appellant's pick-up truck, which had other persons in it, but gave up the chase when appellant was able to outdistance decedent's van. During this chase, Walter Bare, decedent's brother, had been in a vehicle behind the van. Thereafter, appellant stopped at a bar, after which he drove to decedent's home. He there observed the decedent, in his van, coming toward his pick-up truck. He shot decedent with the rifle which he kept in the truck. A collision then occurred between decedent's van and appellant's truck. Appellant left the area of the shooting and hid the rifle in a cornfield. When he later returned to the scene of the shooting, he was accused of being the perpetrator by Walter Bare. Bare had previously told police of the shooting and had given them the license number of appellant's truck. Police observed two high power rifle casings on the floor of the truck and damage to appellant's truck, which corresponded to damage on decedent's van. They placed appellant under arrest.

After his arrest, appellant was kept in a detention cell at the Oxford Borough Police Station until 6:30 o'clock, A.M. During this time he had an altercation with a cellmate, damaged the cell, and slept. He was awakened at 6:30 o'clock and submitted to a neutron activation test. He was advised of his rights under Miranda*fn1 after which he gave an

[ 271 Pa. Super. Page 532]

    exculpatory statement and signed consents for the search of his home and truck. Following these events appellant was again placed in a detention cell where he remained for another two hours. During this period the police, with help from David Blackburn, who had also been arrested in connection with the shooting, attempted unsuccessfully to find the murder weapon.

Shortly before noon, appellant was removed to the Avondale State Police Barracks where, after having been given food, he made a brief, oral inculpatory statement, which, inter alia, specifically disclosed the location of the rifle. With this information police were readily able to find the murder weapon in the cornfield where it had been hidden. Jones was arraigned at 3:00 o'clock, P.M. Two days later, while appellant was in prison, he gave a written, inculpatory statement containing a full account of the shooting.

Prior to trial, appellant moved to suppress his several statements and the murder weapon. The trial court refused the applications to suppress, and these items of evidence were used at trial by the Commonwealth. Appellant argues that this was error.

Initially, he contends that police lacked probable cause to arrest him and that the evidence, therefore, was the product of an unlawful arrest. This is not a meritorious argument. Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the shooting. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a ...

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